IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 98,691
STATE OF KANSAS ex rel. PAUL J. MORRISON,
Attorney General of the State of Kansas,
Petitioner,
v.
THE HONORABLE KATHLEEN SEBELIUS,
Governor of the State of Kansas,
Respondent.
SYLLABUS BY THE COURT
1. Quo warranto is an extraordinary remedy available when any person usurps, intrudes into, or unlawfully holds or exercises any public office, and a writ of quo warranto may issue when it is alleged that the separation of powers doctrine has been violated.
2. The separation of powers doctrine requires a court to presume a statute to be constitutional. All doubts must be resolved in favor of its validity, and before a statute may be stricken down, it must clearly appear the statute violates the constitution.
3. When considering if there has been a violation of the separation of powers doctrine, a court must examine the specific facts and circumstances presented and search for a usurpation by one branch of government of the powers of another branch of government.
4. A usurpation of powers exists when there is a significant interference by one branch of government with operations of another branch of government.
5. A court determining whether there has been a significant interference by one branch of government should consider (a) the essential nature of the power being exercised; (b) the degree of control by one branch over another; (c) the objective sought to be attained; and (d) the practical result of the blending of powers as shown by actual experience over a period of time.
6. The Kansas Constitution designates the attorney general as an executive officer in Article 1, § 1 but does not define the attorney general's duties. In the absence of constitutional definition of powers, the legislature has the power to define the attorney general's duties.
7. The legislature obligated the attorney general to give his or her opinion in writing, without fee, upon all questions of law submitted to him or her by the legislature, or either house thereof. This power is consistent with the long-held view that the giving of advisory opinions is an executive, not a judicial, power.
8. The legislature has imposed a duty upon the attorney general to file and defend lawsuits involving the State when directed to do so by the governor or either house of the legislature.
9. The legislature lacks constitutional authority to intrude into the attorney general's duties as an officer of the court. The legislature cannot override an attorney's ethical duties to the court or direct the attorney general to file an action if the attorney general has a good faith belief that the action seeks an unconstitutional remedy.
10. Courts have the power to determine whether a statute is constitutional. This power arises only when the question is presented in an actual case or controversy between parties.
11. Courts do not have the constitutional power to issue advisory opinions.
12. The lawsuit contemplated in the judicial trigger provision of the Kansas Funeral Privacy Act, K.S.A. 21-4015(i), would not satisfy federal standards used to determine whether an actual case or controversy exists and under federal law would be considered a provision calling for an impermissible advisory opinion from the courts.
13. State courts are not bound by the prohibition against advisory opinions found in the Constitution of the United States or by federal justiciability requirements.
14. Kansas courts have recognized a constitutional case-or-controversy requirement arising solely from the separation of powers doctrine embodied in the Kansas constitutional framework.
15. As part of the Kansas case-or-controversy requirement, courts require: (a) parties must have standing; (b) issues cannot be moot; (c) issues must be ripe, having taken fixed and final shape rather than remaining nebulous and contingent; and (d) issues cannot present a political question.
16. The judicial power granted by Article 3 of the Kansas Constitution does not include the power to give advisory opinions. A Kansas court issuing an advisory opinion would violate the separation of powers doctrine by exceeding its constitutional authority.
17. Article 2 of the Kansas Constitution gives the legislature the exclusive power to pass, amend, and repeal statutes.
18. The separation of powers doctrine prohibits either the executive or judicial branches from assuming the role of the legislature.
19. Power is shifted away from the legislature when the legislature does not reach its own independent conclusion, albeit preliminary, regarding the constitutionality of a statute. Consequently, the giving of a judicial opinion regarding the constitutionality of pending legislation is unconstitutional on the ground that it violates the principle of separation of powers.
20. A power or duty forbidden by the constitution cannot be conferred on the court by the legislature, and it cannot be exercised by a court or its members.
21. Mandamus is a proceeding to compel some person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law. Mandamus provides the remedy of compelling a public officer to perform a clearly defined duty, one imposed by law and not involving the exercise of discretion, and it is an appropriate avenue to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of public business.
22. When a private person brings an action in mandamus, there must be a showing of actual, specific, and peculiar injury.
23. When a mandamus action is brought on relation of the attorney general or another government officer, there is no requirement of actual injury. In such a case, it must be shown: (1) there is a question relating to a specified duty imposed by law and not involving discretion; (2) the question must be of great public importance and concern sufficient to warrant the court exercising its discretionary jurisdiction; and (3) the question must arise from an actual controversy, meaning a situation must have arisen which implicates the official's duty.
24. The judicial trigger provision of the Kansas Funeral Privacy Act, K.S.A. 21-4015(i), seeks an unconstitutional remedy that would violate the separation of powers doctrine in two respects. First, a lawsuit filed pursuant to the provision would not present an actual case or controversy. It would seek an advisory opinion, and a court would not have the judicial power to grant the remedy. Second, the provision purports to make the Kansas Supreme Court an advisor to the legislature on whether inoperative funeral protest provisions are facially constitutional and should be allowed to become operative. A court issuing such an opinion would usurp the legislature's duty to make a preliminary judgment on the constitutionality of inoperative legislative provisions.
25. The Kansas Funeral Privacy Act states an explicit standard for how suspended provisions will become operative. Activation of the inoperative provisions under other circumstances would violate the express statement of the legislature, broaden the scope of the Act in a manner not authorized by the legislature, and violate the separation of powers doctrine.
Original action in quo warranto. Opinion filed March 11, 2008. Judgment for the petitioner is granted in part and denied in part.
Stephen R. McAllister, solicitor general, argued the cause, and Jared S. Maag, deputy solicitor general, Kristafer R. Ailslieger, assistant solicitor general, and Paul J. Morrison, attorney general, were with him on the briefs for petitioner.
Jay P. Warren, of Bryan Cave LLP, of New York, New York, argued the cause, and Lynn S. McCreary and Kristi K. Wilhelmy, of Bryan Cave LLP, of Kansas City, Missouri, were on the briefs for respondent.
Megan E. Jennings, of Kansas City, Missouri, was on the brief for amicus curiae Representative Raj Goyle and Representative Jeff Whitham.
The opinion of the court was delivered by
LUCKERT, J.: During the 2007 Kansas legislative session, the legislature passed and the governor signed House Substitute for Senate Bill No. 244 (H. Sub. S.B. 244), which substantially amended K.S.A. 21-4015 (Furse 1995), formerly known as the Kansas Funeral Picketing Act, and now, as amended, known as the Kansas Funeral Privacy Act, K.S.A. 21-4015. L. 2007, ch. 111, secs. 1-6. Although the legislature repealed the Kansas Funeral Picketing Act, it did not make operative those substantive provisions of the Kansas Funeral Privacy Act regulating the time and place of protests at funerals. Rather, in a section the parties refer to as the judicial trigger provision, the legislature provided that the funeral protest provisions of the new legislation would not become operative unless and until this court or a federal court determined the funeral protest provisions were constitutional. K.S.A. 21-4015(i). In another provision, referred to as the judicial review provision, the legislature directed the attorney general to file a lawsuit challenging the constitutionality of the funeral protest provisions. K.S.A. 2007 Supp. 75-702a.
This lawsuit is not the action suggested in those provisions, however. In this action, the attorney general challenges the constitutionality of the judicial trigger provision, arguing the legislature violated the separation of powers doctrine by directing the attorney general to file the lawsuit contemplated in the provision. This argument is constructed on two premises. First, according to the attorney general, the legislature usurped or intruded into executive and judicial powers by ordering the attorney general to file a lawsuit he believes would seek an unconstitutional remedy and, as a result, would lack merit. Second, the attorney general's conclusion regarding the merits of the suit is based upon an argument that the judicial trigger lawsuit would require a court to provide advice to the legislature as to whether the funeral protest provisions are constitutional and should become operative; he notes that courts do not have the judicial power to provide advisory opinions. If we agree with the attorney general on these points, he requests an order severing the judicial trigger provision from the Kansas Funeral Privacy Act.
These arguments are partially persuasive. The separation of powers doctrine prohibits the legislature from directing the attorney general to file a lawsuit that would seek an unconstitutional remedy, and the judgment sought by the judicial trigger provision would exceed the constitutionally defined power of a court, which is limited to deciding actual cases or controversies. The funeral protest provisions cannot present an actual case or controversy because the provisions are inoperative; therefore, no one's privacy has been protected, no one's protest has been restricted, no one's liberty has been threatened, and no one's duty to enforce the provisions has been activated.
Nevertheless, the judicial trigger provision cannot be severed from the Kansas Funeral Privacy Act because severance would broaden the effect of the Act in a manner contrary to the express directions of the legislature. The legislature directed that the funeral protest provisions would become operative if and when determined constitutional. That determination has not been made, and it would violate the separation of powers doctrine to make the provisions operative in a manner contrary to the explicit directions of the legislature.
Quo Warranto Jurisdiction
Article 3, § 3 of the Kansas Constitution grants this court original jurisdiction in quo warranto actions. Quo warranto is an extraordinary remedy available when "any person shall usurp, intrude into or unlawfully hold or exercise any public office." K.S.A. 60-1202(1). In other words, a writ of quo warranto may issue when it is alleged that the separation of powers doctrine has been violated. A violation of the separation of powers doctrine can result when legislation permits one branch of government to usurp or intrude into the powers of another branch of government. If such a situation exists, the statute is unconstitutional. See, e.g., State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 64, 687 P.2d 622 (1984) (statute allowing legislature to adopt, modify, or revoke administrative rules and regulations by concurrent resolution was unconstitutional usurpation of executive powers).
In this case, the governor does not dispute this court's jurisdiction, the appropriateness of this dispute being raised in a quo warranto action, or the appropriateness of this issue being decided on relation of the attorney general against the governor of the state (see Kansas House of Representatives, 236 Kan. at 58). Moreover, the governor does not dispute the premise that a statute would be unconstitutional if it ordered the attorney general to seek a remedy, such as an advisory opinion, that was not within the power of a court.
What the governor does dispute is the attorney general's contention that the judicial trigger and review provisions would lead to an advisory opinion. The governor asserts that a controversy exists currently, meaning that resolution of the controversy would be within constitutionally granted judicial powers, and, consequently, the legislature has the power to direct the attorney general to file the lawsuit testing the Kansas Funeral Privacy Act's constitutionality.
To explain and analyze the parties' differing positions we will examine the statutory provisions; analyze the separation of powers doctrine as it relates to the interrelationship of the legislative, executive, and judicial branches; and apply those principles to the question of whether the legislature's directive to the attorney general violates the separation of powers doctrine.
Statutory Provisions
In arguing a present controversy exists, the governor's argument is based, in part, upon section 6 of the Kansas Funeral Privacy Act, which provides the Act shall "take effect and be in force from and after its publication in the statute book." L. 2007, ch. 111, sec. 6.
The impact of this provision is diluted by the so-called judicial trigger, which makes some of the Act's provisions inoperative. The judicial trigger provision states:
"(i) Amendments by this act to this section shall be applicable on and after whichever of the following dates is applicable:
(1) If the action authorized by K.S.A. 2007 Supp. 75-702a, and amendments thereto, is decided in Kansas state court, amendments by this act to this section shall be applicable from and after the date the Kansas supreme court upholds the constitutionality thereof.
(2) If the action authorized by K.S.A. 2007 Supp. 75-702a, and amendments thereto, is decided in federal court, amendments by this act to this section shall be applicable from and after the date of the judgment of the court upholding the constitutionality thereof." (Emphasis added.) K.S.A. 21-4015(i).
Among the provisions that are not operative because of the judicial trigger are those which make it unlawful to demonstrate "at any public location within 150 feet of any entrance to a cemetery, church, mortuary, or other location where a funeral is held or conducted, within one hour prior to the scheduled commencement of a funeral, during a funeral or within two hours following the completion of a funeral" or to interfere with a funeral procession or anyone's ability to exit or enter a funeral. K.S.A. 21-4015(e).
However, the judicial trigger does not cover section 2 of the Act, codified at K.S.A. 2007 Supp. 60-1803, which relates to libel and slander occurring at a funeral. Thus, section 2 is operative and, in this regard, stands alone as the only operative, substantive provision.
All other operative provisions are procedural, including section 4, codified at K.S.A. 2007 Supp. 60-2102a(b)(2), which relates to appellate jurisdiction; section 5, L. 2007, ch. 111, which repeals the previous Kansas Funeral Picketing Act; and section 3, codified at K.S.A. 2007 Supp. 75-702a, which provides for judicial review of the substantive provisions. Section 3 states:
"In accordance with K.S.A. 75-702, and amendments thereto, the attorney general shall seek judicial determination of the constitutionality of K.S.A. 21-4015, as amended by L. 2007, ch. 111, § 1, and amendments thereto. If the action authorized by this section is brought in a district court of this state, then the judgment of that district court shall be appealed directly to the Kansas supreme court as a matter of right." K.S.A. 2007 Supp. 75-702a.
The combined effect of sections 1(i), 3, and 6, L. 2007, ch. 111, is that the attorney general is under a current statutory obligation to challenge the constitutionality of the Kansas Funeral Privacy Act. This obligation creates a current controversy regarding whether the legislature's directive violates the separation of powers doctrine.
Separation of Powers Doctrine
The separation of powers doctrine is not expressly stated in either the United States or Kansas Constitutions. Yet, the doctrine is recognized as "an inherent and integral element of the republican form of government." Van Sickle v. Shanahan, 212 Kan. 426, 447, 511 P.2d 223 (1973). In Van Sickle, this court discussed the theoretical underpinnings of the doctrine and its importance to our government, describing it as the "cornerstone to free republican government" and essential to liberty. 212 Kan. at 445; see also Leek v. Theis, 217 Kan. 784, 804-05, 539 P.2d 304 (1975).
The basic contours of the separation of powers doctrine are easily stated. Each of the three branches of our government–the legislative, judicial, and executive branches–is given the powers and functions appropriate to it. As the United States Supreme Court explained nearly 200 years ago: "The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law." Wayman v. Southard, 23 U.S. (10 Wheat) 1, 46, 6 L. Ed. 253 (1825).
This statement, while accurate and straightforward, is deceptively simplistic because "separation of powers of government has never existed in pure form except in political theory." Leek, 217 Kan. at 805. In reality, there is an overlap and blending of functions, resulting in complementary activity by the different branches that makes absolute separation of powers impossible. Kansas House of Representatives, 236 Kan. at 59; see Youngstown Co. v. Sawyer, 343 U.S. 579, 635, 96 L. Ed. 1153, 72 S. Ct. 863 (1952) (Jackson, J., concurring) ("While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."). This recognition has been described as a "pragmatic, flexible and practical approach" to the operation of government. State v. Greenlee, 228 Kan. 712, 715, 620 P.2d 1132 (1980).
Given that the separation of powers is not pure, how is it determined that one branch has violated the doctrine by unconstitutionally usurping or intruding into the powers of another branch? Guidance for that determination has been reduced to four general principles. See State v. Beard, 274 Kan. 181, 186, 49 P.3d 492 (2002); Kansas House of Representatives, 236 Kan. at 59-60; Manhattan Bldgs., Inc. v. Hurley, 231 Kan. 20, 32, 643 P.2d 87 (1982); Greenlee, 228 Kan. at 716.
First, the separation of powers doctrine requires a court to presume a statute to be constitutional. Beard, 274 Kan. at 186. "A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so." Martin v. Kansas Dept. of Revenue, 285 Kan. ___, ___, ___ P.3d ___ (No. 94,033, filed February 1, 2008) (slip op. at 9-10).
Second, when considering if there has been a violation of the separation of powers doctrine, a court must examine the specific facts and circumstances presented and search for a usurpation by one branch of government of the powers of another branch of government. Beard, 274 Kan. at 186.
Third, a usurpation of powers exists when there is a significant interference by one branch of government with the operations of another branch. 274 Kan. at 186.
Fourth, a court determining whether there has been a significant interference by one branch of government should consider "(a) the essential nature of the power being exercised; (b) the degree of control by one [branch] over another; (c) the objective sought to be attained . . . ; and (d) the practical result of the blending of powers as shown by actual experience over a period of time." Greenlee, 228 Kan. at 716 (citing State ex rel. Schneider v. Bennett, 219 Kan. 285, 547 P.2d 786 [1976]).
As we apply these principles to this case, we begin with a presumption that the judicial trigger and review provisions are constitutional. Next, we must examine the powers of each branch in the context of the issues before this court. First, is there a significant usurpation or intrusion into the powers of the attorney general and the courts through the legislative directive to file a judicial trigger lawsuit which the attorney general believes lacks merit? Second, does the judicial trigger provision purport to make either a federal court or this court an advisor to the legislature on whether inoperative funeral protest provisions are facially constitutional and, therefore, should be allowed to become operative?
Legislative Directive to File Suit
Regarding the essential nature of the power of the attorney general and of the legislature with respect to the attorney general, the Kansas Constitution designates the attorney general as an executive officer in Article 1, § 1. The Kansas Constitution does not define the attorney general's duties, however. In the absence of constitutional definition of powers, the legislature has the power to define the attorney general's duties. State ex rel. Stephan v. Finney, 251 Kan. 559, 578, 836 P.2d 1169 (1992) ("'[T]he executive power is more limited than legislative powers, extending merely to the details of carrying into effect laws enacted by the legislature . . . , the legislature having the power, except where limited by the constitution itself, to stipulate what actions executive officers shall or shall not perform.'").
In defining the attorney general's duties, the legislature obligated the attorney general to "give his or her opinion in writing, without fee, upon all questions of law submitted to him or her by the legislature, or either branch thereof." K.S.A. 75-704. This power is consistent with the long-held view that the giving of advisory opinions is an executive, not a judicial, power. Tex. Ass'n of Business v. Air Control Bd., 852 S.W.2d 440, 444 n.6 (Tex. 1993) (citing Correspondence of the Justices, Letter from Chief Justice John Jay and the Associate Justices to President George Washington, August 8, 1793, in Tribe, American Constitutional Law, p. 73 n.3 [2d ed. 1988]); see Kansas House of Representatives, 236 Kan. at 70 (Herd, J., dissenting) (positing that court had issued advisory opinion that intruded upon attorney general's duty to advise).
The legislative record regarding the Kansas Funeral Privacy Act reveals the attorney general advised the legislature regarding the constitutionality of the Act and, consistent with his argument before this court, opined the funeral protest provisions are laudable, important, and constitutional. Minutes, House Comm. on Fed. & State Affairs, March 8, 2007 (testimony of Attorney General Paul J. Morrison, attachment 4). The legislature apparently wanted a second opinion and directed the attorney general to seek that opinion by filing the judicial trigger lawsuit. See In re Advisory Opinion to Governor, 856 A.2d 320, 323 (R.I. 2004) (in exercising constitutional power granted by Rhode Island Constitution to issue advisory opinion, court cautions the justices are "speaking in our individual capacities as legal experts rather than Supreme Court justices" and that "this opinion is not an exercise of judicial power, it is not binding and it carries no mandate").
Additionally, the legislature imposed a duty upon the attorney general to file and defend lawsuits involving the State when directed to do so by the legislature or the governor. The duty is imposed by K.S.A. 2007 Supp. 75-702, which states:
"The attorney general shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested or a party, and shall also, when required by the governor or either branch of the legislature, appear for the state and prosecute or defend, in any other court or before any officer, in any cause or matter, civil or criminal, in which this state may be a party or interested or when the constitutionality of any law of this state is at issue and when so directed shall seek final resolution of such issue in the supreme court of the state of Kansas."
This provision is not under attack in this suit. Nor does the attorney general argue the judicial review provision in the Kansas Funeral Privacy Act, which draws authority from K.S.A. 2007 Supp. 75-702, is unconstitutional by itself. Rather, he argues the unconstitutionality arises when the judicial review provision of the Kansas Funeral Privacy Act is combined with the judicial trigger provision, because the result is a directive from the legislature requiring the attorney general to take action contrary to the Kansas Constitution and, therefore, lacking merit.
The first premise of this argument–that the legislature cannot constitutionally direct the attorney general to take an action the attorney general believes is without merit–is supported by State ex rel. Foster v. City of Kansas City, 186 Kan. 190, 350 P.2d 37 (1960). State ex rel. Foster was an original quo warranto proceeding filed by the State, on relation of the county attorney, to test the validity of ordinances annexing an industrial district to the City of Kansas City. The attorney general intervened and filed a motion to dismiss the action. The following month, the governor directed the attorney general not to seek the dismissal of the proceeding but to prosecute it and assure all parties an opportunity to present the issues.
The principal issues on appeal were whether the attorney general had authority to intervene in a suit brought by the county attorney and, having done so, whether the attorney general had the right to file a motion to have the action dismissed when dismissal was contrary to the instructions of the governor. The court ruled the governor did not have the power to prevent the attorney general from pursuing the motion to dismiss if the attorney general, acting as an attorney and, therefore, as an officer of the court, felt the action lacked merit. Even though the directive came from one member of the executive branch to another, the court found a violation of the separation of powers because the attorney general, in that capacity, acted as an officer of the court:
"[W]e conclude the attorney general by his motion to intervene and supersede the county attorney exercised his powers and duties under the constitution and appropriate statutes; this was as far as he could go as an executive officer and as an attorney and officer of this court. Since he is an officer of the judicial branch, under the separation of powers of the three branches of government, he was limited and restricted in his conduct before this court by the code of professional ethics [citation omitted] to the same extent any other lawyer would be. If, therefore, the attorney general considered the action unmeritorious, he not only had the authority, but he also had a duty to move for dismissal. We cannot think that the framers of our state constitution or the members of the legislature ever intended that the governor should have control over the judicial branch, or its officers, as is advocated [by the defendant]. Each of the three branches of our government should be zealous of its jurisdiction and each should also be vigilant to see that it does not encroach upon the jurisdiction of the other two." 186 Kan. at 197.
These conclusions control the first issue in this case; the legislature, like the governor, lacks constitutional authority to intrude into the attorney general's duties as an officer of the court. The legislature cannot override an attorney's ethical duties to not "bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." Kansas Rules of Professional Conduct (KRPC) 3.1 (2007 Kan. Ct. R. Annot. 500) (meritorious claims and contentions); see K.S.A. 60-211(b)(2), (c) (signing petition certifies good faith belief that claims are meritorious; sanctions provided for violations). Moreover, the attorney general is duty bound to uphold the constitution. K.S.A. 54-106 (oath of office shall be taken by all officers elected or appointed under any law of the State of Kansas to support the Constitution of the United States and the Constitution of the State of Kansas and to faithfully discharge all duties of office). Consequently, the legislature cannot direct the attorney general to file an action if the attorney general has a good faith belief that the action seeks an unconstitutional remedy.
The attorney general does not suggest this conclusion ends our analysis. Nor does he argue his conclusion regarding the merits of a judicial trigger action should not be tested. Indeed, the point of this action is to seek an adjudication that an action attacking the inoperative Kansas Funeral Privacy Act's funeral protest provisions would necessarily seek a remedy that is constitutionally prohibited–i.e., an advisory opinion.
Legislative Directive for An Advisory Opinion
Unquestionably, courts have the power to determine whether a statute is constitutional.