Wilson v. Sebelius

• Decision Date: 11 July 2003
• Docket Number: No. 90,404.,90,404.
• Citation: 72 P.3d 553,276 Kan. 87
• Parties: LARRY WILSON and the DEMOCRATIC PARTY OF SHAWNEE COUNTY, KANSAS, Petitioners, v. KATHLEEN SEBELIUS, GOVERNOR, CHEARIE DONALDSON, and the REPUBLICAN PARTY OF SHAWNEE COUNTY, KANSAS, Respondents.
• Court: Kansas Supreme Court

276 Kan. 87

72 P.3d 553

LARRY WILSON and the DEMOCRATIC PARTY OF SHAWNEE COUNTY, KANSAS, Petitioners, v. KATHLEEN SEBELIUS, GOVERNOR, CHEARIE DONALDSON, and the REPUBLICAN PARTY OF SHAWNEE COUNTY, KANSAS, Respondents.

No. 90,404.

Supreme Court of Kansas.

Opinion filed July 11, 2003.

Gregory M. Garvin, of Sader & Garvin, LLC, of Overland Park, argued the cause, and Patrick J. Hurley and Neil S. Sader were on the brief for petitioners. Natalie G. Haag, of Fisher, Cavanaugh, Smith & Lemon, P.A., of Topeka, argued the cause and was on the brief for respondents Chearie Donaldson and the Republican party of Shawnee County.

Wm. Scott Hesse, assistant attorney general, was on the brief for intervener Phill Kline, attorney general.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

This is an original action in mandamus and quo warranto brought by petitioners Larry Wilson and the Democratic party of Shawnee County challenging the constitutionality of the statutory scheme set out in K.S.A. 2002 Supp. 19-504, 25-3902, and 25-3903 for filling vacancies in offices, in particular, a vacancy in the office of the Shawnee County treasurer that was created by the resignation of Rita Cline. Respondents are Governor Kathleen Sebelius, Chearie Donaldson, and the Republican party of Shawnee County. The attorney general intervened for the purpose of defending the constitutionality of the statutes. In the alternative, petitioners seek an interpretation of the statutes that would allow the Democratic party of Shawnee County to elect Cline's successor.

The facts are undisputed. On November 7, 2000, Rita Cline was elected Shawnee County treasurer. On the general election ballot, Cline was identified as the candidate of the Democratic party. She was unopposed in the general election.

On February 26, 2001, Cline changed her party affiliation to the Republican party. When Cline resigned from her office as Shawnee County treasurer, effective March 10, 2003, she was a registered Republican.

The Shawnee County Democratic party elected Larry Wilson to be appointed to fill the vacant Shawnee County treasurer's position and certified the election to Governor Kathleen Sebelius on March 18, 2003. The Shawnee County Republican party elected Chearie Donaldson to be appointed to fill the vacant Shawnee County treasurer's position and certified the election to Governor Kathleen Sebelius on March 18, 2003.

With the agreement of the parties, the court issued an order temporarily restraining Governor Sebelius from appointing any individual certified by a district convention of either party to the position of Shawnee County treasurer.

The procedure provided by the legislature for filling a vacancy in the office of county treasurer, set out in K.S.A. 19-504, 25-3902, and 25-3903, is for the governor to appoint the person selected by a district convention of the political party of the outgoing official. The governor is not given the opportunity to choose from several nominees and has no discretion to reject the district convention's single selection.

K.S.A. 2002 Supp. 19-504 provides: "In case the office of county treasurer shall become vacant, there shall be appointed a successor to perform the duties of such treasurer. . . . Appointments hereunder shall be made in the manner provided by law for filling vacancies in the office of member of the house of representatives." K.S.A. 25-3903 provides that "[w]henever a vacancy occurs in the office of state representative . . . such vacancy shall be filled by appointment by the governor of the person elected to be so appointed by a district convention held as provided in K.S.A. 25-3902." K.S.A. 25-3902(a) provides in part:

"[W]hen a district convention is provided by law to be held to elect a person to be appointed to fill a vacancy in a district office, the county chairperson designated in subsection (b) . . ., within 21 days of receipt of notice that a vacancy has occurred or will occur, shall call and convene a convention of all committeemen and committeewomen of the party of the precincts in such district for the purpose of electing a person to be appointed by the governor to fill the vacancy." (Emphasis added.)

K.S.A. 25-3901(b) defines "party" as "a political party having a state and national organization and of which the officer or candidate whose position has become vacant was a member."

Because Cline was affiliated with the Democratic party in November 2000 when she was elected Shawnee County treasurer, the Shawnee County Democratic party determined that it was entitled to elect a person to be appointed to fill the vacancy. The Shawnee County Democratic party elected Larry Wilson and certified its choice to Governor Sebelius on March 18, 2003.

Because Cline was affiliated with the Republican party in March 2003 when she resigned from office as Shawnee County treasurer, the Shawnee County Republican party determined that it was entitled to elect a person to be appointed to fill the vacancy. The Shawnee County Republican party elected Chearie Donaldson and certified its choice to Governor Sebelius on March 18, 2003.

The parties stipulate that it is appropriate for this court to exercise original jurisdiction in this matter. Article 3, § 3 of the Kansas Constitution grants original jurisdiction in proceedings in quo warranto and mandamus to this court. An original action in quo warranto is an appropriate procedure for questioning the constitutionality of a statute. State ex rel. Stephan v. Martin, 230 Kan. 747, 748, 641 P.2d 1011 (1982). Petitioners challenge the constitutionality of the statutory scheme for filling vacancies in offices. An original action in mandamus is an appropriate procedure for compelling an official to perform some action. Wichita Eagle & Beacon Publishing Co. v. Simmons, 274 Kan. 194, 50 P.3d 66, 77 (2002). Petitioners request the court, if it determines the statutes to be unconstitutional, to direct the Governor to appoint a treasurer for Shawnee County pursuant to K.S.A. 25-312. Petitioners request the court, if it determines the statutes to be constitutional, to direct the Governor to appoint Larry Wilson as treasurer for Shawnee County. In State ex rel. Stephan v. Finney, 251 Kan. 559, 836 P.2d 1169 (1992), we said:

"`Numerous prior decisions have recognized 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. 231 Kan. 20, Syl. ¶ 4; Mobil Oil Corporation v. McHenry, 200 Kan. 211, 239, 436 P.2d 982 (1968), and cases cited therein. . . .

. . . .

"`Relief in the nature of quo warranto and mandamus is discretionary. State ex rel. Stephan v. Carlin, 229 Kan. [665, 666, 630 P.2d 709 (1981)]. This court may properly entertain this action in quo warranto and mandamus if it decides the issue is of sufficient public concern.'" 251 Kan. at 567 (quoting State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 52-53, 687 P.2d 622 [1984])."

The petitioners assert that this matter is of sufficient public concern, stating:

"As for public concern, the legitimacy of the power and appointment of those holding public office is of the highest public concern as it would affect virtually every public office in the State. Already, since the last election, this issue is now ripe in two counties. The Governor has already filed an action in Woodson County to have these issues determined resulting from the vacancy in the office of the Woodson County sheriff. Like the Shawnee County treasurer, the sheriff of Woodson County switched parties after being elected.

"While the constitutionality and interpretation of the current appointment scheme is in doubt, the appointment process will be in a perpetual state of limbo and will impair the ability of executive offices to act. Currently, there is no sheriff of Woodson County. There is no current Shawnee County treasurer. If this issue is not now decided by this Court, these issues will eventually come before the Court, but only after a nine to sixteen month delay, depending on all trial and appellate circumstances. In the meantime, an executive vacuum will ensue. The vacancies to these public offices will remain open and new litigation will ensue possibly every time a new vacancy arises. The very purpose of the appointment process was to provide a quick and efficient means to fill vacancies in public offices until the next available election. This legislative purpose will be thwarted until resolution of these issues."

We agree that mandamus and quo warranto are appropriate and proper means for resolving this matter.

In the present case, Petitioners have posed two questions — both the interpretation and the constitutionality of the statutory scheme set out in K.S.A. 2002 Supp. 19-504, 25-3902, and 25-3903. Appellate courts generally avoid making unnecessary constitutional decisions. Thus, where there is a valid alternative ground for relief, an appellate court need not reach constitutional challenges to statutes. State v. Donham, 29 Kan. App. 2d 78, 91, 24 P.3d 750,rev. denied 272 Kan. 1421 (2001) (citing Rust v. Sullivan, 500 U.S. 173, 207, 114 L. Ed. 2d 219, 111 S. Ct. 1759 [1991] [Blackman, J., dissenting]); International Ass'n of Machinists v. Street, 367 U.S. 740, 749, 6 L.Ed. 2d 1141, 81 S. Ct. 1784 (1961). This court declined to reach the constitutional question in circumstances very like those ofthe present case, in an original action in mandamus. Rogers v.Shanahan, 221 Kan. 221, 565 P.2d 1384 (1976). Rogers was the senator-elect for the state's 21st senatorial district, and the incumbent senator contested the election. Shanahan, the secretary of state, interpreted K.S.A. 1975 Supp. 46-143 in light of the contest as making Rogers ineligible to attend the preorganizational ...