State ex rel. Stephan v. Johnson

Citation807 P.2d 664,248 Kan. 286
Decision Date01 March 1991
Docket NumberNo. 64309,64309
Parties, 66 Ed. Law Rep. 828 STATE of Kansas, ex rel., Robert T. STEPHAN, Attorney General, Appellee, v. Everett L. JOHNSON, Appellant.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. A moot case is one in which there exists no actual controversy requiring adjudication or where any judgment rendered would be unavailing as to the real issue presented.

2. The rule as to moot questions is one of court policy, founded upon the proposition that, except when under some statutory duty to do so, courts do not sit for the purpose of giving opinions upon abstract propositions not involving actual controversy presented for determination.

3. The court is statutorily and constitutionally without authority to render advisory opinions in cases found to be moot. A case is moot when no further controversy exists between the parties and where any judgment of the court would be without effect.

Following NEA-Topeka, Inc. v. U.S.D. No. 501, 227 Kan. 529, Syl. p 1, 608 P.2d 920 (1980).

4. The record is examined and it is held: The issues presented on appeal are moot, and the appeal should be dismissed.

Clark V. Owens, Wichita, argued the cause and was on the brief for appellant.

John W. Campbell, Deputy Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

ALLEGRUCCI, Justice:

The State of Kansas, through Attorney General Robert T. Stephan, filed this quo warranto action seeking the removal of Everett L. Johnson from the office of board member, District No. 10, Kansas State Board of Education (Board). The district court entered an order granting the State's motion for summary judgment, and respondent appealed. The Court of Appeals affirmed the district court's granting of summary judgment. State ex rel. Stephan v. Johnson, 14 Kan.App.2d 542, 795 P.2d 411 (1990). We granted review.

Article 6, § 2 of the Kansas Constitution provides for a State Board of Education to supervise public schools, educational institutions, and all the educational interests of the state except those delegated to the state board of regents. The Board consists of 10 members with overlapping terms. These members represent 10 geographic districts as provided for by the legislature. Kan. Const. art. 6, § 3(a).

On April 8, 1989, Richard J. Peckham resigned his position as the duly elected board member for District No. 10, Kansas State Board of Education. On May 9, 1989, a district convention was held pursuant to K.S.A. 25-3902a, consisting of the Republican chairman and vice-chairman of each of the counties comprising District No. 10 of the Board. At the convention, respondent, a tenured faculty member of Wichita State University, was elected to fill the vacant position. The governor received a certificate of respondent's election on May 11, 1989, and his appointment became effective seven days thereafter. Respondent filed his oath of office with the secretary of state on June 6, 1989.

As a tenured faculty member of Wichita State University, respondent is a state employee in the unclassified service. K.S.A. 75-2935(1)(f). He resides within District No. 10 of the Board.

An attorney general's opinion was issued on May 26, 1989, concluding that K.S.A. 25-1904, which prohibits a state employee from serving as a member of the Board, bars respondent from service on the Board. Att'y Gen.Op. No. 89-65. Respondent refused to relinquish his claim to the position for District No. 10. Respondent has been acting as a Board member for District No. 10 since the filing of his oath of office on June 6, 1989.

On June 7, 1989, the State of Kansas, through the attorney general, filed a petition in quo warranto in Shawnee County District Court, requesting an order "ousting and removing" Johnson from his position on the Board pursuant to K.S.A. 60-1201 et seq. On June 9, 1989, another convention was held in District No. 10, and Gwendel A. Nelson was elected as Board member. The attorney general filed an amended petition on June 27, 1989, adding Nelson as a party, alleging Nelson's election was null and void and requesting the court to find that a vacancy existed in the position. On June 28, 1989, the State filed a motion for suspension of public officer. This pleading asked the court to suspend both Nelson and respondent from performing duties of office until a decision was made on the amended petition in quo warranto. Respondent's answer to this motion challenged the constitutionality of K.S.A. 25-1904.

On July 7, 1989, the district court found that respondent was a de facto member of the Board, that he had raised a bona fide legal question challenging the legality of K.S.A. 25-1904, that no public interest would be harmed by allowing him to continue in the position, and that Nelson had relinquished any claim to the position. The court denied the motion for temporary suspension.

The State moved for summary judgment on July 14, 1989. Respondent filed a counter-motion for summary judgment on July 26, 1989, acknowledging that the facts were undisputed but challenging the constitutionality of K.S.A. 25-1904. The district court granted the State's motion for summary judgment on August 22, 1989. An order specifically dismissing Nelson from the case was entered by the district court on November 9, 1989, to clarify the status of the case. The Court of Appeals affirmed the decision of the district court in finding that the provisions of the Kansas Constitution did not provide qualifications for the Board that prohibited the legislature from enacting additional qualifications.

At oral argument before this court, counsel for respondent Johnson informed this court that, before the Court of Appeals decision was filed on July 6, 1990, respondent filed for election to the present position on the Board; he was defeated in the primary election. Thereafter, on August 16, 1990, he resigned his position as Board member from District No. 10. For that reason, we must first consider if this action is moot and should therefore be dismissed.

We have consistently followed the well-established rule that this court will not consider or decide a question on appeal when it appears that any judgment we might render would be unavailing. Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P.2d 1113 (1941). There must be an existing controversy requiring adjudication and not an abstract proposition requiring an advisory opinion. The rule as to moot questions is one of court policy, founded upon the proposition that, except when under some statutory duty to do so, courts do not sit for the purpose of giving opinions upon abstract propositions not involving actual controversy presented for determination. Knowles v. State Board of Education, 219 Kan. 271, Syl. p 2, 547 P.2d 699 (1976).

In Moore v. Smith, 160 Kan. 167, 160 P.2d 675 (1945), D.D. Smith was nominated in the primary election to serve as sheriff for the "unexpired" or "short term." At the general election, Keith Moore was elected sheriff for the regular two-year term beginning in January. Following the general election, Moore brought an action to enjoin the county commissioners from certifying Smith as sheriff for the "unexpired" term. The issue was whether the appeal should be dismissed as moot because the alleged short term had expired. We said:

"A 'moot case' has been variously defined. One common definition is that it is a case in which determination of an abstract question is sought when in reality there is no actual controversy existing. Another common definition is that it is one which seeks a judgment upon some matter which if rendered could not have any practical effect upon any then-existing controversy. (27 Words and Phrases, Perm. ed. 536, 538.) The fact that an issue has become moot does not necessarily mean that the appellate court is without jurisdiction to determine it. The rule is one of court policy, founded upon the sound proposition that except when under some statutory duty to do so courts do not sit for the purpose of giving opinions upon abstract propositions not involving actual controversy presented for determination.

"The rule as to moot issues requires further statement at this point. The fact that the only relief directly sought upon appellate review can no longer be given, owing to expiration of a period of time involved or to other change in circumstances following judgment, is by no means always sufficient to justify dismissal of the appeal. One of the well-established conditions, as to dismissal, is stated in 4 C.J.S. 1945-1948, as follows:

" 'The appeal ... will be dismissed ... unless ... the judgment, if unreversed, will preclude the party against whom it stands as to a fact vital to his rights.' (Italics supplied.) Similarly, it is said in 3 Am.Jur. 310: "It is not every change in circumstances which might be said to render the case a moot one so as to require a dismissal of the appeal or error proceeding, however. Thus, there will be no dismissal ... whenever the judgment, if left unreversed, will preclude the party against whom it is rendered as to a fact vital to his rights, even though the judgment, if affirmed, may not be directly enforceable by reason of a lapse of time or change of circumstances." ' " 160 Kan. at 170-71, 160 P.2d 675.

In NEA-Topeka, Inc. v. U.S.D. No. 501, 227 Kan. 529, 531-32, 608 P.2d 920 (1980), we concluded the issue before the court was moot. We said:

"Appellate review is dependent upon the existence of an actual case or controversy, (Thompson v. Kansas City Power & Light Co., 208 Kan. 869, 871, 494 P.2d 1092, cert. denied 409 U.S. 944 [93 S.Ct. 270, 34 L.Ed.2d 215] [1972], and none is present in a moot case. This court is not statutorily empowered to render advisory opinions. Knowles v. State Board of Education, 219 Kan. 271, 278, 547 P.2d 699 (1976); Thompson v. Kansas City Power & Light Co., 208 Kan. 869 [494 P.2d 1092 (1972) ]. We also find the court is...

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    ...641 P.2d 366.But this contrivance can be avoided squarely within our existing mootness jurisprudence. See State ex rel. Stephan v. Johnson , 248 Kan. 286, 291, 807 P.2d 664 (1991) (" ‘The rule that when it appears by reason of changed circumstances between the commencement of an action and ......
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