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January 22, 2016, Appellate Court Digests
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Kansas Supreme Court – Civil

Appellate Practice, Local Government & Municipalities, Statutes,
Supreme Court, and Voting
State v. City of Wichita
Original Action Quo Warranto
No. 113,528 – January 22, 2016

FACTS: Marijuana reform supporters (Initiative) filed petitions with city clerk that proposed amending Wichita municipal code to reduce penalties for possession of small amounts of marijuana and/or drug related paraphernalia. A copy of the proposed ordinance was not included with petitions submitted to city clerk, nor was proposed amendment fully set forth in the signed petitions. City found the petition contained the requisite number of signatures of qualified voters, K.S.A.12-3013(a), and voted to submit the issue in a special election. Voters approved ballot question that contained a summary of the proposed ordinance. City filed declaratory judgment action in district court to determine validity of the new ordinance. Kansas Attorney General filed original action for quo warranto writ declaring the amended city ordinance null and void because it: (i) impermissibly conflicted with and was therefore preempted by uniform state law under Home Rule Amendment to Kansas Constitution, (ii) was not adopted in accordance with procedures in K.S.A. 12-3013(a), (iii) did not contain ordaining clause required by K.S.A. 12-3005, and (iv) was essentially administrative in nature which excluded it from scope of referendum and initiative process under K.S.A. 12-3013(e).

ISSUES: (1) Quo Warranto Jurisdiction and (2) Procedures under K.S.A. 12-3013

HELD: Quo warranto jurisdiction is maintained, finding case presents two questions of sufficient public concern. One is conflict of one municipal ordinance with criminal statutes of the entire state. Second is significance of failure to comply with statute authorizing people to submit to city’s governing body a proposed ordinance.

State’s request for writ in quo warranto is granted. K.S.A. 12-3013 is analyzed, finding Wichita ordinance was not enacted according to state law. Under facts of case, supporters of the proposed ordinance failed both absolutely, and substantially, to comply with K.S.A. 12-3013(a) when they did not file the proposed ordinance with city clerk. State’s remaining arguments, including potential conflict of city ordinance with state law, are not considered.

CONCURRENCE AND DISSENT (Johnson, J.): Agrees that Initiative, by failing to file proposed ordinance with city clerk, did not comply with statutory requirement necessary to affect a citizen-initiated city ordinance. Disagrees that it was proper to retain jurisdiction over this original action when readily apparent adequate relief was available in district court. While extent of a municipality’s constitutional home rule powers could provide rare circumstance justifying departure from general rule of declining concurrent jurisdiction over original actions, majority did not reach that constitutional issue. Exception to the concurrent jurisdiction rule was unjustified in this case.

CONCURRENCE AND DISSENT (Biles, J.): Agrees that quo warranto is appropriate remedy that must issue because initiative supporters failed to comply with K.S.A. 12-3013(a). Dissents from majority’s evasion of more substantive constitutional and statutory questions presented in this case.

STATUTES: K.S.A. 2014 Supp. 21-5706(c)(2)(A), -5709(e)(2)(B), -6602(a)(1), -6611(b)(1); K.S.A. 12-3005, -3013, -3013(a), -3013(b), -3013(c), -3013(e)(1); and K.S.A. 25-4325 (Furse 1993)

Kansas Court of Appeals – Civil

INJUNCTION, CONSTITUTIONAL INTERPRETATION
HODES & NAUSER, MDS, P.A.; HERBERT C. HODES, M.D. AND TRACI LYNN NAUSER, M.D. V. DEREK SCHMIDT, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF KANSAS; AND STEPHEN M. HOWE, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR JOHNSON COUNTY
SHAWNEE COUNTY
NO. 114,153 – JANUARY 22, 2016

FACTS: In 2015, the Kansas Legislature passed Senate Bill 95, which banned "dismemberment abortions", also referred to as D&E abortions. This is the most common type of second-trimester abortion. Doctors Hodes and Nauser, physicians practicing in Johnson County, filed suit in Shawnee County seeking a declaratory judgment that the statute was unconstitutional under the Kansas Constitution. A Shawnee County district court judge found, for the first time, that there was a right to abortion present in the Kansas Constitution, independent of the United States Constitution. On those grounds, the judge granted a motion temporarily enjoining enforcement of the statute.

ISSUES: (1) Constitutional Interpretation and (2) Abortion

HELD: Writing for an evenly divided court, the majority found that Sections 1 and 2 of the Kansas Constitution provide a right to abortion, independent of the United States Constitution. This finding was based on the Kansas Supreme Court's past interpretation of Sections 1 and 2. With this finding in place, the court went on to find that the injunction was properly issued because the physicians had shown a substantial likelihood of success on the merits. Specifically, the court found that the State's proffered alternative procedures unduly burdened a woman's right to terminate her pregnancy.

CONCURRENCE: Judge Atcheson agreed with the outcome reached by the six other judges. But he did so after a historical analysis of Section 1 of the Kansas Constitution.

DISSENT: Writing for six other judges, Chief Judge Malone found that there is no independent right to abortion in the Kansas Constitution. This was finding was based on the plain language of Sections 1 and 2, which do not contain language similar to the Fourteenth Amendment to the United States Constitution.

STATUTES: Sections 1 and 2 of the Kansas Constitution

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