Ramcharan-Maharajh v. Gilliland

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No. 106,906

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

BISSESSARNATH RAMCHARAN-MAHARAJH,
Appellant,

v.

DELTON M. GILLILAND, County Counselor,
RHONDA BEETS, County Clerk,
CARL MEYER, County Commissioner,
MIKE PRUITT, County Commissioner,
and
KEN KUYKENDALL, County Commissioner,
Appellees.

SYLLABUS BY THE COURT

1.
Mandamus is an order that a public official or lower court perform a specified
legal duty. A person seeking an order (or writ) of mandamus must show that the
respondent has a clear legal duty to take the action at issue.

2.
The Kansas Constitution provides for referendums only as provided for by statute.
Kan. Const. art. 12, § 5(b).

3.
No statute provides authority for the referendum sought in this case.

4.
Because the Kansas Constitution authorizes referendums only as provided for by
statute, a Kansas city cannot agree to hold a referendum that is not provided for by
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statute. Kansas cities may not enter into contracts that contravene statutes or public
policy, and the Kansas Constitution is the preeminent declaration of the public policy of
our state.

5.
Any person has a First Amendment right to petition the government for the redress
of grievances, but the First Amendment does not require that the government take action
in response to a citizen's petition. The United States Constitution does not require states
to provide for initiative or referendum rights.

6.
Where a state establishes initiative and referendum rights, the state has the power
to provide reasonable restrictions on access to the ballot.

Appeal from Osage District Court; ERIC W. GODDERZ, judge. Opinion filed September 7, 2012.
Affirmed.

Bissessarnath Ramcharan-Maharajh, appellant pro se.

Vaughn Burkholder, Tara S. Eberline, and James D. Oliver, of Foulston Siefkin LLP, of
Overland Park, for appellee.

Before PIERRON, P.J., GREEN and LEBEN, JJ.

LEBEN, J.: More than 4 years after Osage City had authorized contracts to
participate in a federal rails-to-trails project, Bissessarnath Ramcharan-Maharajh
submitted petitions seeking to put the project before the voters for approval—or
disapproval—in a referendum. But referendums are available in Kansas only when
specifically authorized by statute, and no statute authorized the referendum Ramcharan
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sought. The district court therefore properly dismissed Ramcharan's lawsuit, which
sought to force county officials to put the referendum on the ballot.

FACTUAL BACKGROUND

In 2004, the Osage City Council passed a resolution authorizing the mayor to
apply to the Kansas Department of Transportation for funds to participate in a federal
rails-to-trails project, which converts unused railroad tracks into recreational trails. This
particular project would convert some unused tracks in Osage City into pedestrian and
bicycle trails. In January 2006, the city council passed resolutions that authorized the
mayor to enter into a lease and a contract for design services, and the council passed
another resolution that authorized the city manager to enter into a contract with the
Kansas Department of Transportation that assigned responsibilities for completing the
project.

More than 4 years later, in March 2010, Bissessarnath Ramcharan-Maharajh
attended an Osage City Council meeting and expressed concern about the rails-to-trails
project. The next month, Ramcharan presented the county clerk with a petition calling for
a public vote on the four resolutions, which had passed in 2004 and 2006. The petition
proposed a ballot question of whether the city's resolutions to construct the trails at a cost
of more than $1 million should be effective.

In August 2010, the county clerk notified Ramcharan that the clerk was declining
to review the signatures because Ramcharan's petition didn't present a question that could
be the subject of an election. The same day, the county counselor notified Ramcharan that
there was no legal basis in his petition that would compel an election.

Ramcharan filed suit in November 2010, seeking a writ of mandamus that would
compel the clerk to accept, verify, and certify the names on the petition. Ramcharan
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named the county clerk, the county counselor, and three county commissioners as
respondents in his petition.

The district court granted the county's motion for judgment on the pleadings and
dismissed Ramcharan's petition. Ramcharan has appealed that dismissal to this court.

ANALYSIS

Ramcharan raises a number of arguments on appeal, but we find three broad
propositions decisive. First, referendums are only authorized in Kansas where provided
for by statute, and no statute authorizes the referendum Ramcharan seeks. Second, the
city has no authority to agree to a referendum that's not authorized by Kansas statute, so
even if—as Ramcharan alleges—the city agreed to the referendum, the agreement
wouldn't be valid. Third, the First Amendment doesn't guarantee a right to referendum, so
the inability to put these city actions to public vote in a referendum doesn't violate
Ramcharan's constitutional rights. We will discuss the specific arguments Ramcharan
makes on appeal in the context of these rules.

Because Ramcharan's suit was dismissed on a motion for judgment on the
pleadings, we review the matter independently, without any required deference to the
district court. Wagner v. State, 46 Kan. App. 2d 858, 860, 265 P.3d 577 (2011). We must
accept as true the factual allegations made in Ramcharan's petition; we then decide
whether he has stated a potentially valid claim based on those facts. Purvis v. Williams,
276 Kan. 182, 186-87, 73 P.3d 740 (2003).

Ramcharan seeks mandamus as a remedy; mandamus is an order that some public
official or lower court perform a specified legal duty. See K.S.A. 60-801. Someone
seeking an order (or writ) of mandamus must show that the respondent has a clear legal
duty to take the action at issue. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597,
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620, 244 P.3d 642 (2010). Whether to issue a mandamus order depends on statutory
interpretation regarding the duties of the officials involved; we also review those matters
independently, without any required deference to the district court. 291 Kan. at 620.

Before discussing the issues, we also place in context what Ramcharan asks the
court to order the public officials to do, i.e., hold a referendum. A referendum is a public
vote—secured by a petition signed by a certain number of voters—approving or rejecting
an action already taken (or, in some states, merely proposed) by a governmental body.

There is another process for voter input in government—the initiative process—
that's sometimes confused with referendums. The difference is that a referendum is a
public vote taken in response to a measure initiated by the government, while in the
initiative process citizens develop the proposal that is then placed on the ballot for public
approval. See generally Eskridge, Frickey & Garrett, Cases and Materials on Legislation:
Statutes and the Creation of Public Policy, pp. 523-24 (4th ed. 2007). Ramcharan has not
suggested that his proposal be considered as an initiative.

I. No Statute Authorizes the Referendum Ramcharan Seeks.

Local governments in Kansas are legal creations of the State of Kansas, and local
governments have only the authority granted to them by the state or by the people
(through the state constitution). See Heim, Home Rule Power for Cities and Counties in
Kansas, 66 J.K.B.A. 26, 27-28 (Jan. 1997); Clark, State Control of Local Government in
Kansas, 20 U. Kan. L. Rev. 631, 654-55, 658-59 (1972). The Kansas Constitution gives
broad home-rule powers to cities, but the home-rule provision in the Kansas Constitution
provides for "referendums only in such cases as prescribed by the legislature." Kan.
Const. art. 12, § 5(b). So if there is to be any authority for a city to hold a referendum,
that authority must come from the legislature: aside from home-rule authority, cities
have only such authority as has been granted by the state, and the home-rule authority
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given to Kansas cities specifically limits referendums to cases "prescribed by the
legislature."

Initiatives in Kansas are authorized by one broad statute, K.S.A. 12-3013. But
referendums, brought about by protest petitions, are authorized by about 40 different
statutes concerning specific subjects. Protest petitions are most commonly used to force a
referendum when a city government authorizes a tax or a bond issue. See K.S.A. 12-137;
Heim, Kansas Local Government Law §§ 5.70, 5.90-5.91(4th ed. 2009). Ramcharan
points to no subject-specific statute authorizing a referendum here.

Instead, Ramcharan cites to K.S.A. 2011 Supp. 25-3601, a procedural statute that
applies only when some other statute provides authority for a referendum. K.S.A. 2011
Supp. 25-3601 provides a format for submitting ballot questions and a process for getting
official approval of questions before getting citizen signatures on petitions seeking a
public vote. But the statute applies only when "a petition is required or authorized as part
of the procedure applicable" to the governmental entity involved. Some statute other than
K.S.A. 2011 Supp. 25-3601 must provide the authority for a referendum; K.S.A. 2011
Supp. 25-3601 is purely procedural.

One of the provisions of K.S.A. 2011 Supp. 25-3601 provides that the form of the
proposed ballot question be submitted for approval to the county counselor or to the
county or district attorney, who has 5 calendar days to respond. K.S.A. 2011 Supp. 25-
3601(a). If the response is not made within that time limit, then "the form of the question
shall be deemed in compliance" with legal requirements. (Emphasis added.) K.S.A. 2011
Supp. 25-3601(a). Ramcharan suggests that this part of K.S.A. 2011 Supp. 25-3601
provides authorization for a referendum since the county counselor failed to respond to
Ramcharan's proposed ballot question within 5 days. But even if the county counselor
failed to respond, that only confers approval of the form of the question, not the right to
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place it before the people in a referendum. K.S.A. 2011 Supp. 25-3601 simply doesn't
provide substantive authority for placing a referendum before the voters.

II. A City Can't Agree to Have a Referendum That's Not Authorized by Statute.

Apart from any statutory authority, Ramcharan contends that Osage City entered
into a valid contract with him under which a referendum must be held. He says this
agreement was reached during a city council meeting in 2010, and he provides this
description of the terms agreed upon:

"If Ramcharan could show the City Council that a substantial number of the electorate
would like to have the proposed continuation of the expenditure of tax dollars on the
Rails to Trails project placed on a ballot, then the city of Osage City will have an election
on whether the resolutions authorizing the expenditure would continue to be effective or
not."

The minutes of the city council's March 9, 2010, meeting noted that Ramcharan spoke to
the council and that the mayor told Ramcharan "that there would be approximately 60
days before any further action is taken and that would be substantial time for
Mr. Ramcharan to get his petition in order prior to any action." The district court found
that there was no evidence of any contract between the city and Ramcharan, and our
record certainly doesn't provide evidence of one.

But even if the city had agreed to a referendum if Ramcharan got enough
signatures, cities are special entities that may not enter into contracts that contravene
statutes or public policy. See Anderson Construction Co. v. City of Topeka, 228 Kan. 73,
79-80, 612 P.2d 595 (1980). As we've noted previously, the Kansas Constitution provides
for referendums "only in such cases as prescribed by the legislature." (Emphasis added.)
Kan. Const. art. 12, § 5(b). The Kansas Constitution is the preeminent declaration of
Kansas public policy, so we are once again left with the proposition that unless a statute
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authorizes this referendum, it can't be had. The city has no power to provide for a
referendum that's not authorized by statute since the city's home-rule authority provides
for referendums "only" as legislatively authorized. A city's agreement to put a
referendum on the ballot would contravene public policy and thus be invalid unless
there's statutory authority for the referendum. Since no statute authorizes the referendum
Ramcharan proposed, any agreement by the city to put it on the ballot would be invalid.

III. There Is No First Amendment Right to Referendums.

Even if no statute authorizes his proposed referendum, Ramcharan argues that
statutory authority isn't needed because his right "to petition the Government for a redress
of grievances" is guaranteed by the First Amendment. He's correct, of course, that he has
a right to petition the government, seeking government action in response to his
complaints or suggestions. But the First Amendment does not require that the
government respond to a citizen's petition. As the United States Supreme Court has said,
"Nothing in the First Amendment or in this Court's case law interpreting it suggests that
the rights to speak, association, and petition require government policymakers to listen or
respond to individuals' communications on public issues." Minnesota Bd. for Community
Colleges v. Knight, 465 U.S. 271, 285, 104 S. Ct. 1058, 79 L. Ed. 2d 299 (1984); see 2
Tribe, American Constitutional Law § 13-17, p. 1095 (2d ed. 1988).

Nor does the United States Constitution require that states provide for initiative
and referendum rights. See Kendall v. Balcerzak, 650 F.3d 515, 523 (4th Cir. 2011);
Molinari v. Bloomberg, 564 F.3d 587, 597 (2d Cir. 2009); American Constitutional Law
Foundation v. Meyer, 120 F.3d 1092, 1100 (10th Cir. 1997). Rather, the right to initiative
and referendum in a city or state derives from a state constitution or statute, not from
federal law. See Loonan v. Woodley, 882 P.2d 1380, 1383 n.3 (Colo. 1994); In re
Initiative Petition No. 349, 838 P.2d 1, 9 (Okla. 1992).

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Where a state establishes initiative and referendum rights, the state has the power
to provide reasonable restrictions on access to the ballot. Meyer, 120 F.3d at 1097. The
state's important interest in regulating ballot access generally is sufficient by itself to
justify reasonable, nondiscriminatory ballot-access restrictions. Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 364-65, 117 S. Ct. 1364, 137 L. Ed. 2d 589 (1997).
Ramcharan has not shown that there's anything unreasonable in providing for protest
petitions in some situations but not in others, including his attempt to seek a referendum
over Osage City's decisions to participate in the federal rails-to-trails program.

In addition to his broad argument that the First Amendment petition right
guarantees his right to the referendum he seeks, Ramcharan also argues that the varying
requirements under different statutes for different numbers of signatures to get something
on the ballot constitutes an undue burden upon him. Ramcharan is correct that more
signatures are required to get some things on the Kansas ballot than others. But we return
to our conclusion that no statute authorizing a referendum applies to his case. We see no
valid constitutional objection in Ramcharan's argument that there are differing petition
requirements in statutes that have no application here.

Finally, on the constitutional front, Ramcharan also argues that it violated his due-
process rights to dismiss his case without an evidentiary hearing. In support of his
argument, he cites a habeas corpus case that applies a familiar rule in those cases that an
evidentiary hearing is ordinarily required if the person being held in custody alleges facts
that, if true, would warrant relief. But Ramcharan seeks a writ of mandamus requiring a
government official to act, not a writ of habeas corpus ordering the release or change in
treatment of a prisoner. Due process doesn't require an evidentiary hearing when the issue
raised is purely a matter of law and we accept as true the allegations Ramcharan made in
his petition. See Chester Water Authority v. Public Util., 581 Pa. 640, 653-54, 868 A.2d
384 (2005).

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CONCLUSION

No statute authorized the referendum Ramcharan sought; no constitutional
provision requires Kansas to provide for referendums where not authorized by statute;
and a Kansas city may not agree to a referendum that the legislature hasn't provided for.
The district court properly dismissed Ramcharan's petition.

The district court's judgment is affirmed.