IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 99,808
No. 99,809
JAMES MCALISTER, et al.,
Appellants,
v.
CITY OF FAIRWAY, KANSAS, et al.,
Appellees.
SYLLABUS BY THE COURT
1. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
2. An appeal will not be dismissed for mootness, unless it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights.
3. K.S.A. 12-3013 provides a procedure by initiative and referendum whereby a city's electors may place legislative action of the city governing body before the people for a vote.
4. Whether a proposed ordinance offered by a city's electors under K.S.A. 12-3013(e)(1) is administrative is determined by the factual situation in each case.
5. The operation of K.S.A. 12-3013(e)(1) is to be confined with a considerable degree of strictness to measures that are quite clearly and fully legislative and not principally executive or administrative.
6. The phrase "quite clearly and fully legislative" that is often repeated in our case law should not be read so strictly as to mean solely legislative when applied to the operation of K.S.A. 12-3013(e)(1).
7. One crucial test for determining if an ordinance is legislative or administrative is whether the ordinance makes a new law or executes existing law. Permanency and generality of application are two additional key features of a legislative ordinance.
8. Acts declaring a public purpose and providing ways to accomplish that purpose may be generally classified as legislative. Acts dealing only with a small segment of an overall policy question are generally administrative in character.
9. Decisions requiring specialized training and experience in municipal government and intimate knowledge of the fiscal and other affairs of a city in order to make a rational choice may properly be characterized as administrative in character, even though they may also be said to involve the establishment of policy.
10. When the matter at issue in a proposed ordinance under the initiative and referendum statute is one of statewide concern and the legislature delegates decision-making power to local councils or boards rather than local electors, the city's action is administrative in character.
11. No one guideline necessarily controls over the others when a court is asked to determine whether a proposed ordinance is administrative under K.S.A. 12-3013(e)(1). But it is possible under the facts of any given case that the weight given to any one guideline may be enough to decide that an initiative ordinance intrudes too far into a city's administrative functions.
Appeal from Johnson district court; GERALD T. ELLIOTT, judge. Opinion filed July 24, 2009. Affirmed.
Reid F. Holbrook, of Holbrook & Osborn, P.A., of Overland Park, argued the cause, and Michael T. Jilka and Judd L. Herbster, of the same firm, were with him on the briefs for appellants.
Michael J. Davis, of Stinson Morrison Hecker, LLP, of Kansas City, Missouri, argued the cause, and Stephen P. Chinn, of the same firm, was with him on the brief, and Michael K. Seck, of Fisher Patterson Sayler & Smith, LLP of Overland Park, argued the cause and was with them on the brief for appellees.
John R. Hamilton, of Hamilton, Laughlin, Barker, Johnson & Watson, of Topeka, and Dana Berliner and William H. Mellor, of Institute for Justice, of Arlington, Virginia, were on the brief for amici curiae Institute for Justice and the Castle Coalition.
Sandra Jacquot, general counsel, and Donald L. Moler, Jr., executive director, of League of Kansas Municipalities, of Topeka, were on the brief for amicus curiae League of Kansas Municipalities.
The opinion of the court was delivered by
BILES, J.: This is an appeal from a district court's decision on cross-motions for summary judgment involving two proposed city ordinances advanced by citizens of the City of Fairway, Kansas (City), through the initiative and referendum authority granted in K.S.A. 12-3013. The district court ruled the ordinances were not permitted by the statute. It is undisputed the required petitions accompanying these proposed ordinances are in proper form and carry sufficient genuine signatures from qualified local electors. The controversy arises from the ordinances' subject matter because state law excludes certain topics from the initiative and referendum process. See K.S.A. 12-3013(e).
The first proposed ordinance seeks to restrict the City's ability to relocate its city hall facilities to certain locations within the City's boundaries. The second proposes to not allow the use of rezoning, eminent domain, and condemnation, as well as restricting commercial, business, apartment, condominium, or mixed use development to certain locations within the City. The City refused to adopt the ordinances or advance them for public vote on the basis of K.S.A. 12-3013(e)(1), which states: "The provisions of this section shall not apply to: (1) Administrative ordinances." This litigation followed. The district court agreed with the City and determined both proposed ordinances were administrative. Our task is to decide whether either ordinance is administrative in nature.
We affirm. In reaching this decision, we review and revise the guidelines to be applied when courts are asked to determine whether an ordinance proposed under the initiative and referendum statute is administrative.
Factual and Procedural Background
The material facts are not in dispute. Beginning in 2001, the governing body for the City began discussing the need for a new city hall building. Those discussions spanned the next few years. During that time, the City organized task forces to assess municipal needs, commissioned studies to review city services and associated issues, and conducted related public forums. The City also hired an architectural firm to complete a site analysis, validate a space and needs study, prepare a conceptual design with cost information, and develop schematic designs. To finance the project, the City sought advice regarding municipal bonds.
During this conceptualization process, consideration was given to locating the new city hall facility on the southeast corner of Shawnee Mission Parkway and Mission Road. This led to some citizen opposition. At another point, the City entered into discussions with the State Historical Society and the Shawnee Indian Museum about locating the new facility on the Shawnee Indian Museum grounds. This, too, generated opposition.
James McAlister, Klaus Ulrich, and James Kernell (Appellants) are residents of the City. They prepared two proposed city ordinances and organized supporting petition drives in an effort to invoke the statutory initiative and referendum process set out in K.S.A. 12-3013. One petition was entitled "Restrictions on the Future Relocation of the City of Fairway City Hall" (the City Hall Petition.) The other was entitled "Restrictions on the Future Commercial Development of Residential Property in the City of Fairway, Kansas" (the Commercial Development Petition, also referred to by the trial court as the Eminent Domain Petition). To appreciate the controversy here, it is necessary to set out the language in the proposed ordinances.
The City Hall Petition, in pertinent part, states:
"Be it ordained by the governing body of the City of Fairway, Kansas: That the City of Fairway, Kansas, shall not relocate the City of Fairway City Hall to the following locations, and such locations shall not be considered by the City of Fairway, Kansas as proposed and/or potential relocation sites for such purpose:
"The 12 acre site commonly known as The Shawnee Indian Mission Historic Site, as designated on the Johnson County AIMS map of the City of Fairway, Kansas, as of January 14, 2005; and
"Within a one-quarter (1/4) mile radius of the southeast corner of the intersection of Mission Road and Shawnee Mission Parkway, as designated on the Johnson County AIMS map of the City of Fairway, Kansas, as of January 14, 2005; and
"Property in residential use, as designated on the Johnson County AIMS map of the City of Fairway, Kansas, as of January 14, 2005."
The Commercial Development Petition, in pertinent part, states:
"That the City of Fairway, Kansas shall not allow rezoning, nor eminent domain use, nor condemnation of Fairway's residential, neighborhood business or state historic properties, and specifically the following locations shall not be considered by the City of Fairway, Kansas as proposed and/or potential commercial, business, apartment, condominium or mixed use sites:
"The 12 acre site commonly known as The Shawnee Indian Mission Historic Site, as designated on the Johnson County AIMS map of the City of Fairway, Kansas, as of January 14, 2005; and
"Property on Mission Road, Shawnee Mission Parkway, or within a one-quarter (1/4) mile radius of the intersection of Mission Road and Shawnee Mission Parkway, as designated on the Johnson County AIMS map of the City of Fairway, Kansas, as of January 14, 2005; and
"Property zoned residential anywhere in Fairway, as designated on the Johnson County AIMS map of the City of Fairway, Kansas, as of January 14, 2005."
Because it will impact our analysis, we need to note at this juncture that the record reflects 90.1 percent of the land in the City is zoned for residential use, while 5.6 percent is zoned commercial and 4.3 percent is zoned for public purposes. Therefore, the scope of the land area within the City protected by these proposals is considerable, as are the limitations imposed on the City.
As required by statute, both petitions were submitted for approval as to form to the county counselor. In December 2005, the county counselor gave that approval but reserved judgment as to whether either petition contained valid subject matter. On April 4, 2006, the Johnson County Election Office verified there were sufficient qualified voter signatures to satisfy the statutory requirements. We note the City is organized as a city of the second class, which means each petition had to carry signatures equal in number to 40 percent of the electors who voted at the last preceding regular city election. See K.S.A. 12-3013(a).
But the Fairway city attorney advised the mayor and city council the petitions were administrative in nature and, therefore, not subject to initiative and referendum under K.S.A. 12-3013(e)(1). Based on this advice, the City took no further action on either petition. The City's refusal prompted this litigation.
Appellants filed two lawsuits – one for each initiative petition. In one lawsuit, appellants sought a declaratory judgment that the City Hall Petition was legislative in nature and, therefore, authorized by statute as an appropriate subject for the initiative and referendum process. They also sought an injunction, mandamus, and monetary damages for the City's alleged violation of 42 U.S.C. § 1983 (2006). In the other lawsuit, Appellants requested a declaratory judgment that the Commercial Development Petition was legislative in nature and other equitable relief in the nature of injunction and mandamus. In both cases, the defendants were the City and City Clerk Kathi Robards.
The district court consolidated the two cases. Thereafter, the parties filed cross-motions for summary judgment advancing differing conclusions about whether the petitions' subject matters were administrative or legislative. The City also sought to have the Commercial Development Petition declared void as being unconstitutionally vague and ambiguous.
On November 19, 2007, the district court granted the City's motions for summary judgment as to both proposed ordinances, finding each was administrative and not subject to initiative and referendum based on K.S.A. 12-3013(e)(1). In so deciding, the district court determined both petitions had the same purpose, which, it said, was to restrict the City's decision-making authority regarding the city hall building relocation.
To reach its conclusions regarding the proposed ordinances' administrative character, the district court applied this court's prior case law as stated in Rauh v. City of Hutchinson, 223 Kan. 514, 575 P.2d 517 (1978), and City of Wichita v. Kansas Taxpayers Network, Inc., 255 Kan. 534, 874 P.2d 667 (1994) (citing City of Lawrence v. McArdle, 214 Kan. 862, 522 P.2d 420 [1974]). But as the district court viewed it, Rauh offered a separate test from the guidelines set out in Kansas Taxpayers Network and McArdle, so it applied both independently – reaching the same conclusion under either analysis.
In first applying Rauh, the district court determined both proposed ordinances were invalid because their subject matter, which the court characterized as public building acquisition and construction, was an issue of statewide concern. The district court held the legislature delegated decision-making power regarding public building acquisition and construction to city governments through K.S.A. 12-1737 and provided the manner by which a city may finance public buildings and the procedures for a city to utilize such financing. The district court further noted that although various statutes set out general standards by which cities can identify and acquire sites, construct facilities, and finance them, these statutes still leave specific decision-making power regarding location, construction, and financing to local city governing bodies. "Thus," the district court concluded, "ordinances implementing state policy regarding public buildings are administrative in nature."
Next, in applying the guidelines (factors) set out in Kansas Taxpayers Network and McArdle, the district court stated:
"These factors further indicate that the City Hall and Eminent Domain Petitions are administrative in character. The Petitions do not create new law, but administratively execute the existing state laws in K.S.A. 12-1736, giving cities the power to construct and acquire public buildings. The Petitions neither declare a public purpose nor provide ways and means to accomplish that purpose, but seek to deal with only specific possible locations of Fairway City Hall.
"Additionally, in evaluating sites for the location of the new city hall, the City utilized the specialized knowledge of architects, engineers, financial consultants, police officers, and city officials regarding the operational needs and demands of the City. The City further retained consultants to review the City's operations, associated space, safety and regulatory issues. Finally, while some of these factors may arguably contribute to either a legislative or administrative finding, the Court finds that the City Hall and Eminent Domain Petitions are not clearly and fully legislative. Thus, the subject of the proposed ordinances is administrative in character and is expressly excepted from the initiative and referendum process set out in K.S.A. 12-3013."
Based on its ruling, the district court dismissed as moot the City's motion to declare the Commercial Development Petition unconstitutionally vague and ambiguous. Appellants filed timely notices of appeal, and those appeals were subsequently consolidated. We transferred the controversy to this court under K.S.A. 20-3018(c).
One additional complication occurred while this appeal was pending. The City agreed to lease space for its administrative offices in city hall. This lease has a 7-year term, commencing September 1, 2008, with a renewal option for an additional 5-year extension. The City also agreed to renovate its existing city hall building to serve as the City's public safety center, and it leased additional space until the public safety center renovations were complete. In August 2008, all City personnel moved to the temporary space.
The new city hall and public safety center are not located within any areas restricted by the City Hall Petition. But the lease permits the City to transfer, sublet, or assign the lease to third parties after obtaining the landlord's written consent. At oral arguments, counsel for the City also confirmed the lease was subject to the cash-basis law under K.S.A. 10-1101 et seq. and could be cancelled annually under those provisions.
Based on these undisputed facts, we are asked to determine the following issues: (1) Whether this appeal is now moot due to the City's recent actions regarding the city hall building location; (2) whether the district court erred in determining the City Hall Petition was administrative; and (3) whether the district court erred in determining the Commercial Development Petition was administrative. But in deciding the latter two issues, we take the opportunity provided by this litigation to review and revise the guidelines previously articulated in Rauh, Kansas Taxpayers Network, McArdle, and City of Wichita v. Fitzgerald, 22 Kan. App. 2d 428, 916 P.2d 1301 (1996), by further addressing the legislative versus administrative dichotomy.
Standard of Review
The standard for reviewing a district court's decision granting summary judgment is well known:
"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." Miller v. Westport Ins. Corp., 288 Kan. 27, Syl. ¶ 1, 200 P.3d 419 (2009).
To the extent there is no factual dispute, appellate review of an order granting summary judgment is unlimited. Polson v. Farmers Ins. Co., 288 Kan. 165, Syl. ¶ 1, 200 P.3d 1266 (2009).
The determination as to whether an ordinance proposed under the initiative and referendum statute is administrative is to be based on the factual situation in each case. Kansas Taxpayers Network, 255 Kan. at 539; Rauh, 223 Kan. 514, Syl. ¶ 3. Here, we are asked to review the district court's ruling on summary judgment that these initiative and referendum petitions are administrative in character. The parties agree the facts are not in dispute. Therefore, our appellate review is unlimited. Polson, 288 Kan. 165, Syl. ¶ 1.
In Fitzgerald, which also dealt with whether a proposed initiative and referendum ordinance was administrative, our Court of Appeals indicated the scope of review was unlimited because such determinations require a court to interpret K.S.A. 12-3013. 22 Kan. App. 2d at 430 ("This issue requires the court to interpret the statute governing initiative and referendum."). Although we agree the scope of review is unlimited, we do not believe the reason is because these cases require us to interpret a statute. As noted above, this court consistently has held that a determination as to whether a proposed ordinance is legislative or administrative is based on the factual situations in each case. Thus, we are not interpreting the statutory language excluding administrative ordinances under K.S.A. 12-3013(e)(1), as suggested by the Court of Appeals, when we analyze an initiative petition against the guidelines. Instead, we are applying our case law to the facts, which in this case are undisputed. Our appellate review is unlimited because the facts in this case are not in dispute. See Polson, 200 Kan. 165, Syl. ¶ 1.
Is this appeal moot?
The City urges us to dismiss this appeal as moot because it entered into a lease agreement locating its city hall facilities outside the areas proposed to be restricted by the City Hall and Commercial Development Petitions. The City argues any judgment rendered now would have no practical effect. We disagree.
An appeal will not be dismissed for mootness, unless it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights. State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 454, 172 P.3d 1154 (2007).
The issues in this appeal are not moot. The city hall lease agreement may temporarily satisfy the City Hall Petition's requirements, but the City Hall Petition seeks to prohibit the City's ability to relocate city hall in the protected areas. The lease terms do not offer this permanence. Instead, they allow the City to terminate the agreement under certain conditions or transfer or assign the lease to a third party. Such action could permit the City to move its city hall facility into the City Hall Petition's restricted areas at any time.
In addition, and as conceded by counsel during oral argument, the lease terms are subject to the state's cash-basis law, meaning the city council may take action to end the lease agreement's term before its stated expiration date. Finally, the Commercial Development Petition involves restrictions and prohibitions on rezoning, eminent domain, and condemnation that are unaffected by the leasing arrangement. We find the City has not clearly and convincingly shown the issues in this dispute are moot.
What guidelines are appropriate to determine if a proposed ordinance
is legislative or administrative in character?
The Kansas Initiative and Referendum statute, K.S.A. 12-3013, allows city electors to submit a proposed ordinance to a city's governing body by petition if it is signed by a minimum percentage of qualified electors. The percentage varies depending on the city's class size. For example, Fairway is a city of the second class, so a petition there must carry signatures at least equal in number to 40 percent of the electors who voted at the last preceding regular city election. K.S.A. 12-3013(a). Once a petition is submitted with the required minimum signatures and assuming the subject matter is authorized, the city must either pass the ordinance without alteration within 20 days or call a special election allowing the city's electors to vote on it. K.S.A. 12-3013(a).
But a city is not required to act on a petition if its subject matter applies to: (1) An administrative ordinance; (2) an ordinance related to a public improvement to be paid wholly or in part by the levy of a special assessment; or (3) an ordinance subject to referendum or election under another statute. K.S.A. 12-3013(e). Here, the City refused the City Hall and Commercial Development Petitions after concluding both were administrative, which would satisfy the first exclusion if that determination is correct.
Whether a proposed ordinance is legislative or administrative is often a difficult question to answer. Lewis v. City of South Hutchinson, 162 Kan. 104, 124, 174 P.2d 51 (1946). Across the country, courts frequently struggle to classify ordinances as either legislative or administrative. A principal reason for the inconsistency is that some courts give a more liberal application to their particular initiative and referendum process than others. As this court previously commented:
"An examination of the cases and legal authorities will disclose that the determination of whether a municipality has acted in its legislative or administrative capacity is indeed difficult and by no means consistent. Each case must be determined on its particular facts and even then there is no unanimity of opinion. Action based on one set of facts will be considered legislative in one jurisdiction while the same or similar action may be considered administrative in a different jurisdiction." Rauh, 223 Kan. at 522.
In Kansas, the initiative and referendum process under K.S.A. 12-3013 has long been judged on a more demanding basis than in some other locales. See McArdle, 214 Kan. at 870 ("[W]e have never adopted a 'liberal' view of the matters which should be subject to initiative and referendum, but quite the contrary."); State, ex rel., v. City of Kingman, 123 Kan. 207, 209, 254 P. 397 (1927) ("The tendency seems to be to confine the operation of similar referendum statutes with a considerable degree of strictness to measures which are quite clearly and fully legislative and not principally executive or administrative.").
One challenge arising from our stricter doctrine occurs when applying the guidelines for judging whether a particular initiative and referendum petition is legislative or administrative in nature. As we have said previously, no single act of a governing body is ever likely to be solely legislative or solely administrative. Kansas Taxpayers Network, 255 Kan. at 540. Accordingly, courts must determine when a proposed ordinance's administrative characteristics predominate enough to exclude it from the initiative and referendum process.
This court repeatedly has stated the initiative and referendum statute is only appropriate for measures that are "'quite clearly and fully legislative and not principally executive or administrative.'" 255 Kan. at 540; McArdle, 214 Kan. at 867. Making this determination calls for a weighing of the characteristics recited in our case law to decide when an initiative is "legislative" or "administrative." But if the doctrine is applied too strictly by our courts, it can render the statutory initiative and referendum process meaningless and deny our citizens an electoral option reserved to them by the legislature. Courts should be on guard against this danger. A statute should not be interpreted in such a manner as to make it meaningless. See In re Adoption of G.L.V., 286 Kan. 1034, 1041, 190 P.3d 245 (2008) (courts presume the legislature did not intend to enact meaningless legislation).
This difficulty is exemplified by the way in which the district court condensed our strictness doctrine and declared it would strike the proposed ordinances if they were not "clearly and fully legislative." In so stating, the district court dropped the qualifying phrase from our cases that adds "and not principally executive or administrative" to the analysis. We believe this additional qualifying phrase is critical.
In other words, the phrase "quite clearly and fully legislative" should not be read so strictly as to mean "solely legislative." Instead, courts must determine the essential character of a proposed ordinance from the facts found in each case and then confine the operation of the initiative and referendum statute with a considerable degree of strictness to those measures that are "quite clearly and fully legislative and not principally executive or administrative." City of Kingman, 123 Kan. at 209; see City of Lawrence v. McArdle, 214 Kan. 862, 867, 522 P.2d 420 (1974). To be sure, our case law in this area fails to give courts a more precise demarcation in the legislative versus administrative tug-of-war. But this does not mean the initiative and referendum statute may be limited to only those circumstances in which cities are acting purely in a legislative capacity, as argued by the League of Kansas Municipalities in its amicus curiae brief and suggested by the district court's ruling.
With this admonition, we move to the guidelines. In McArdle this court reviewed the prior case law and then identified specific rationales to determine under the facts of each case whether the essential character of a proposed ordinance is legislative or administrative. Those McArdle guidelines are:
1. An ordinance that makes new law is legislative; while an ordinance that executes an existing law is administrative. Permanency and generality are key features of a legislative ordinance. 214 Kan. 862, Syl. 2.
2. Acts that declare public purpose and provide ways and means to accomplish that purpose generally may be classified as legislative. Acts that deal with a small segment of an overall policy question generally are administrative. 214 Kan. 862, Syl. 3.
3. Decisions which require specialized training and experience in municipal government and intimate knowledge of the fiscal and other affairs of a city in order to make a rational choice may properly be characterized as administrative, even though they may also be said to involve the establishment of policy. 214 Kan. 862, Syl. 4.
In City of Wichita v. Kansas Taxpayers Network, Inc., 255 Kan. 534, 874 P.2d 667 (1994), the court enumerated as a fourth guideline the strict application philosophy. This provided that the initiative and referendum statute should be restricted to measures "'quite clearly and fully legislative and not principally executive or administrative.'" 255 Kan. at 540 (quoting McArdle, 214 Kan. 862, Syl. ¶ 1). This fourth guideline was also referenced in Fitzgerald, 22 Kan. App. 2d at 431.
But we believe this principle is more useful as a recitation of the strict construction doctrine discussed above and less helpful as a guideline for determining under the facts in each case whether a proposed ordinance is legislative or administrative. In its brief, the City recognized this same concern and commented that this was "less a fourth measuring stick than a statement of State judicial policy." We agree. It should not continue to be enumerated as a fourth guideline for analyzing the facts in these types of cases.
In Rauh v. City of Hutchinson, 223 Kan. 514, 519-20, 575 P.2d 517 (1978), this court added to the legislative versus administrative analysis, stating:
"'[I]f the subject is one of statewide concer