State ex rel. Stephan v. Kansas House of Representatives

• Citation: 687 P.2d 622,236 Kan. 45
• Decision Date: 29 August 1984
• Docket Number: No. 56880,56880
• Parties: STATE, ex rel., Robert T. STEPHAN, Petitioner, v. KANSAS HOUSE OF REPRESENTATIVES, Kansas Senate, and John Carlin, Governor of the State of Kansas, Respondents.
• Court: United States State Supreme Court of Kansas

Page 622

687 P.2d 622

236 Kan. 45

STATE, ex rel., Robert T. STEPHAN, Petitioner, v. KANSAS HOUSE OF REPRESENTATIVES, Kansas Senate, and John Carlin, Governor of the State of Kansas, Respondents.

No. 56880.

Supreme Court of Kansas.

Aug. 29, 1984.

Syllabus by the Court

1. Mandamus is a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business, notwithstanding the fact that there also exists an adequate remedy at law.

2. Under the Speech or Debate Clause embodied in art. 2, § 22, of the Kansas Constitution, state legislators are immune from lawsuits arising out of the performance of legitimate legislative function.

3. As more specifically stated in the opinion, it is held: On the facts and circumstances presented herein, the legislature is not subject to an action brought on behalf of the state to determine the constitutionality of its actions in passing K.S.A. 1983 Supp. 77-426(c ) and (d ), and in adopting concurrent resolutions pursuant thereto in the 1983 and 1984 legislative sessions, which are alleged to violate the doctrine of separation of powers by usurping the authority of the executive branch to administer and enforce laws.

4. In determining whether the powers of one branch of government have been usurped by another branch, a court should consider (a) the essential nature of the power being exercised, (b) the degree of control by one department over another, (c) the objective sought to be attained by the legislature, and (d) the practical result of the blending of powers as shown by actual experience over a period of time.

5. The record in this original action in mandamus and quo warranto is examined and it is held: K.S.A.1983 Supp. 77-426(c ) and (d ), authorizing the legislature to adopt, modify or revoke administrative rules and regulations by concurrent resolutions without presentment to the governor, are unconstitutional as violative of the doctrine of separation of powers and the presentment requirement contained in art. 2, § 14 of the Kansas Constitution. Accordingly, concurrent resolutions passed by the legislature pursuant to the statute are adjudged to be invalid and the governor is precluded from acting under authority of these invalid resolutions. The governor is ordered to enforce administrative rules and regulations as adopted by executive agencies and as filed with the Revisor of Statutes and not as modified, rejected or revoked by concurrent resolutions of the legislature.

6. The holding of this court is to be applied retroactively to the parties herein, and to other cases pending in the courts of this state when this decision is filed with the Clerk of the Appellate Courts.

Rodney J. Bieker, Asst. Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., and Dan Biles, Asst. Atty. Gen. were with him for petitioner.

Arthur H. Griggs, Topeka, argued the cause for respondent Governor John Carlin.

Robert A. Coldsnow, Kansas Legislative Counsel, Topeka, argued the cause for respondents Kansas House of Representatives and Kansas Senate.

SCHROEDER, Chief Justice:

This is an original action in quo warranto and mandamus brought by the state on relation of the attorney general against the respondents Kansas House of Representatives, Kansas Senate and Kansas Governor, John Carlin, seeking a determination of the constitutionality of K.S.A.1983 Supp. 77-426(c ) and (d ). This statute provides the legislature may adopt, modify or revoke administrative rules and regulations by concurrent resolutions passed by the legislature without presentment to the governor. It is challenged as being violative of the constitutional doctrine of separation of powers by authorizing the legislature to usurp the executive power to administer and enforce laws. It is also argued the statute violates the procedures mandated in art. 2, §§ 14, 20 of the Kansas Constitution concerning the proper enactment of laws. Concurrent resolutions were adopted by the legislature pursuant to this statute during the 1983 and 1984 legislative sessions. This action is brought not only to test the validity of the statute, but also to challenge the actions of the legislature pursuant to the statute. The governor was named a respondent for the stated reason that it is necessary for this court to issue an order directing the governor as to the proper law to be executed by the executive branch of government.

The legislature in its memorandum filed with this court does not brief the merits of this case addressed by the attorney general in this quo warranto and mandamus action. Therefore, we shall first address the issues raised by the legislature in its Motion to Dismiss, filed as its response.

The legislature contends the doctrine of sovereign immunity bars this lawsuit, stating the familiar rule that the state, being a sovereign power, cannot be subjected to suit in its own courts except where consent has been given by the legislature. See, e.g., Sinclair Pipe Line Co. v. State Commission of Revenue & Taxation, 181 Kan. 310, 315, 311 P.2d 342 (1957); Perry v. City of Wichita, 174 Kan. 264, Syl. p 2, 255 P.2d 667 (1953); Linderholm v. State, 146 Kan. 224, Syl. p 1, 69 P.2d 689 (1937), cert. denied 306 U.S. 630, 59 S.Ct. 465, 83 L.Ed. 1033 (1939). Cf., Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015, cert. denied 429 U.S. 806, 97 S.Ct. 41, 50 L.Ed.2d 67 (1976). Governmental immunity, originally judicially created, was abrogated by this court in Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969), in situations where the state or its agencies are engaged in proprietary activities. The Kansas Legislature quickly passed K.S.A. 46-901 et seq. (Weeks), reimposing governmental immunity in Kansas. This was repealed in 1979 when the Kansas Tort Claims Act, K.S.A.1983 Supp. 75-6101 et seq., was enacted, which subjects governmental entities to liability for damages caused by the negligence of its employees acting within the scope of their employment. K.S.A.1983 Supp. 75-6103(a ). However, K.S.A.1983 Supp. 75-6104(a ) specifically exempts the government from liability for damages resulting from "legislative functions, including, but not limited to, the adoption or failure to adopt any statute, regulation, ordinance or resolution."

The difficulty with the legislature's argument is that the cases and authorities cited relate to liability for money damages in actions by private individuals or other entities against a governmental entity. These cases provide no support for the proposition that an original action seeking declaratory relief may not be brought on behalf of the state to question the authority of legislative acts and the authority of administrative agencies to act under the rules and regulations propounded by such legislation. Courts have recognized state officials, as distinguished from the state itself, are not immune from actions to restrain them from enforcing, or attempting to enforce, state laws which violate the constitution or from taking unconstitutional action under color of state law, and therefore actions not seeking money damages are not barred. See Grove Press, Inc. v. State of Kansas, 304 F.Supp. 383, 388 (D.Kan.1969). Moreover, the mere existence of other actions heard by this court in the nature of quo warranto or mandamus against officers of the executive and judicial branches makes it obvious that sovereign immunity does not protect governmental entities from actions for equitable or extraordinary relief. See, e.g., State ex rel. Stephan v. Carlin, 229 Kan. 665, 630 P.2d 709 (1981); State ex rel. v. Bennett, 222 Kan. 12, 564 P.2d 1281 (1977); State ex rel. v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976); Sinclair v. Schroeder, 225 Kan. 3, 586 P.2d 683 (1978).

The legislature also contends service of process upon the Speaker of the House of Representatives and the President of the Senate is insufficient to subject the legislative body as a whole to the jurisdiction of this court. The legislature maintains:

"There is no entity such as the House of Representatives or the Senate which can be served with process through substituted service upon only one member thereof even albeit an officer....

"The only conceivable manner in which the petition could proceed against the Kansas Legislature ... would be to name [and serve with process] all the members thereof individually as respondents in this action."

The petitioner argues, on the other hand, the legislature is a legal entity created by the constitution which has an existence separate and apart from the individuals who hold legislative office and comprise the body of the legislature. The legislative body may be served with process similar to the Office of Governor or the Supreme Court. If the legislative branch is not subject to service of process the judicial branch has no means with which to check abuses of power by the legislative branch, and the mechanism of checks and balances built into the constitution would be destroyed. This argument is supported by the declaration in State v. Brewing Association, 76 Kan. 184, 191, 90 P. 777 (1907):

"No principle of the common law is better established than that plenary power is vested in all courts to protect and preserve their jurisdiction so that the exercise of granted functions may be made effectual ...."

In that case the court held:

"This court has original jurisdiction in proceedings in quo warranto, mandamus and habeas corpus only. It has no original jurisdiction to issue injunctions or to appoint receivers. But in order to protect, preserve and render effectual its original jurisdiction the court may restrain the use and transfer of property and appoint a receiver for property owned and employed by a foreign brewing company unlawfully conducting its business in this state, pending proceedings in quo warranto to oust it." 76 Kan. 184, 90 P. 777...