City of Topeka v. Imming , 51 Kan. App. 2d 247 ( 2015 )

No. 112,869
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
CITY OF TOPEKA, KANSAS,
Plaintiff-Appellee,
and
JAYHAWK RACING PROPERTIES, LLC,
Intervenor-Appellee,
v.
CHRISTOPHER IMMING,
Defendant-Appellant.
SYLLABUS BY THE COURT
1.
Ratification is a principal's affirmance of an agent's prior act, thereby giving the
act the same legal effect it would have if the act had been performed by an agent acting
with authority.
2.
A principal who receives notice of an unauthorized act of an agent must promptly
repudiate the agent's action or it is presumed that the principal has ratified the act.
3.
In dealing with cities, there must be some affirmative act to ratify or some action
taken by the governing body that is consistent with ratification in order to ratify some
unauthorized act of an agent of the city.
1
4.
The four-part test to determine if an ordinance is legislative or administrative as
directed in McAlister v. City of Fairway, 289 Kan. 391, 212 P.3d 184 (2009), is applied.
5.
Ordinances subject to referendum or election under another statute cannot be the
subject of an initiative and referendum petition.
Appeal from Shawnee District Court; LARRY D. HENDRICKS, judge. Opinion filed March 11,
2015. Affirmed.
Robert E. Duncan, II, of Topeka, for defendant-appellant.
Catherine P. Logan and Mark A. Samsel, of Lathrop & Gage LLP, of Overland Park, for plaintiff-
appellee City of Topeka.
Kevin M. Fowler, John C. Frieden, and Eric I. Unrein, of Frieden, Unrein & Forbes, LLP, of
Topeka, for intervenor-appellee Jayhawk Racing Properties, LLC.
Before HILL, P.J., ARNOLD-BURGER and SCHROEDER, JJ.
HILL, J.: The only question we must answer in this appeal is whether Christopher
Imming is entitled to a court order compelling the City of Topeka to either repeal
Ordinance No. 19915—an ordinance calling for the City to buy Heartland Park of
Topeka—or hold a municipal election and let the voters decide the issue. Because the law
creating STAR bonds—the method chosen by the City to finance its purchase—permits a
referendum election only in cases where a protest petition is filed and Imming's petition
is not a protest petition, we hold he is not entitled to a writ of mandamus compelling an
election or repeal of the ordinance.
2
Racing begins at Heartland Park in 1988.
Heartland Park is a race track that was built in 1988 as a City-owned property. It
was intended for racing events for Indy cars, sports cars, AMA motorcycles, and NHRA
drag races. The NHRA drag strip has been financially successful, but for many reasons
not pertinent to this appeal, the road course has received minimal usage. This lack of use
resulted in bankruptcy and the closure of the facility in the fall of 2002. At that time, the
track and its assets were purchased by a private individual. The management of the
facility was subsequently transferred to Jayhawk Racing Properties, LLC.
In order to stimulate economic growth and development or redevelopment in
various districts, the legislature enacted the Sales Tax and Revenue Bond Act now found
in K.S.A. 2014 Supp. 12-17,160 et seq. The law permits cities to issue sales tax and
revenue bonds for these purposes. Hence, these bonds are often labeled as STAR bonds.
The sale of STAR bonds must be approved by the Kansas Secretary of Commerce.
K.S.A. 2014 Supp. 12-17,164(b).
After the law was enacted, the City designated Heartland Park as a major motor
sports complex and, at the same time, established the geographical boundaries of the park
as a redevelopment district. At that time, a STAR bond project plan for the
redevelopment of the area was approved by the City and the Secretary of Commerce, and
over $10 million of STAR bonds were sold to finance the project.
Then, in June 2014, the City decided to acquire the reversionary interests to
Heartland Park owned by Jayhawk Racing. Jayhawk Racing agreed to cancel its
management contract and transfer its reversionary rights to the real estate at Heartland
Park in exchange for the City's promise to pay Jayhawk Racing $2,392,117 for that
interest. And the City would satisfy the debts Jayhawk Racing owed to CoreFirst Bank
and Trust and some others. About the same time, the City, Jayhawk Racing, and
3
CoreFirst all acknowledged that Jayhawk Racing was in default on various loans made by
CoreFirst. They signed an agreement that calls for payment of the debts through the
issuance of new STAR bonds by the City. The parties call the documents reflecting these
agreements the "Memorandum of Understanding" and the "Work Out Agreement."
To implement these agreements, the Topeka City Council adopted Ordinance No.
19915 on August 12, 2014. Basically, the Ordinance approved the Memorandum of
Understanding and the Work Out Agreement. The Ordinance also amended the Heartland
Park of Topeka STAR bond project plan by more than doubling the size of the
redevelopment district and called for the issuance of $5 million of new STAR bonds.
Then, on October 8, 2014, Christopher Imming filed a petition with the Topeka
City Clerk entitled, "A Petition for a New City of Topeka, Kansas Ordinance Relating to
Heartland Park Topeka Redevelopment District and Additional Bond Authority." Citing
K.S.A. 12-3013 as authority, the petition called for either the repeal of Ordinance No.
19915 or submission of the question of repeal to the voters at a municipal election.
Imming collected 3,587 valid signatures on his petition.
Imming's petition produced a reaction at city hall. At the Council meeting on
October 21, 2014, the Council discussed Imming's petition. The record of that meeting
reveals that Council member Chad Manspeaker moved to suspend the Council rules to
add to the agenda a resolution relating to the petition and proposed ordinance Imming
filed with the City Clerk on October 8, 2014. The pertinent part of that resolution states:
"NOW THEREFORE BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
TOPEKA KANSAS that in light of the significant opposition by Topeka residents to the
Heartland Park ordinance, the city attorney is directed not to pursue any litigation
challenging the purported petition and/or proposed ordinance including any declaratory
judgment action."
4
Manspeaker's motion to suspend the rules failed on a vote of 6-3. The next day,
the City Manager filed the petition seeking declaratory judgment. Imming filed an answer
and counterclaim on October 31, 2014. In his counterclaim, Imming sought a writ of
mandamus contending that his petition was valid and the City's governing body was
obliged by law to act on the petition. Imming claimed that the City could either adopt an
ordinance repealing Ordinance No. 19915 or submit the question of whether to repeal the
ordinance to the City's qualified voters.
The declaratory judgment action filed against Imming asked the Shawnee County
District Court to declare Imming's petition to be an invalid attempt at initiative and
referendum. The City attacked Imming's petition in five ways. It alleged that Imming's
petition was invalid as an initiative petition because it did not comply with the statutory
requirements of K.S.A. 2014 Supp. 25-3602(b)(4). Secondly, Imming's petition was
invalid as an initiative petition or a protest petition because it included more than a single
point. The City also argued that Imming's petition was invalid as a protest petition under
the STAR bonds referendum statute because it failed to comply with the requirements
found in K.S.A. 2014 Supp. 25-3601(c). The fourth attack alleged that Imming's petition
was invalid as an initiative petition because it sought to use the initiative statute to require
an election on an administrative ordinance. And finally, the City alleged that the initiative
and referendum law could not be used to set aside Ordinance No. 19915 because the
ordinance is subject to referendum under the specific STAR bond referendum statute.
Since Imming's petition did not comply with the STAR bond referendum statute, then in
the City's view, the petition should be declared a nullity.
The law commands swift court determinations in cases such as this. K.S.A. 2014
Supp. 25-3601(e) requires a court to decide any action which challenges the validity of an
initiative and referendum within 20 days of filing. Realizing this, the parties filed motions
for summary judgment.
5
Jayhawk Racing moved to intervene, and the district court allowed the company to
intervene in the lawsuit both as a matter of right and by permission. It joined the other
parties and filed a motion for summary judgment, aligning itself with the arguments
raised by the City.
Imming moved to dismiss the City's petition for declaratory judgment, alleging
that the City had no standing to sue because its lawsuit was never authorized by the City
Council and it was beyond the authority of the City Manager to file such an action. The
court denied this motion.
The district court decided this case by ruling on the parties' motions for summary
judgment. The court granted Imming summary judgment on three points. Basically, the
court denied the contentions that Imming's petition was technically invalid. But the court
did rule in the City's favor by finding that Ordinance No. 19915 is administrative in
character and, therefore, exempt from the initiative and referendum law in Kansas. The
court also decided that because there is a method in the STAR bond statute for filing a
protest petition and obtaining a referendum election on the issuance of STAR bonds, then
Ordinance No. 19915 could not be the subject of initiative and referendum because it was
subject to a different kind of election. In other words, this ordinance was one of the
statutory exceptions to the initiative and referendum statute.
Imming raises four issues in this appeal. First, Imming contends the district court
erred when it denied his motion to dismiss the City's petition for declaratory judgment.
Secondly, he contends that the district court erred when it decided that Ordinance No.
19915 was administrative. Next, Imming contends that the court incorrectly ruled that the
proposed ordinance was subject to referendum under the STAR bond law and, therefore,
not available for initiative and referendum. Finally, Imming contends the court erred
when it did not grant his counterclaim for a writ of mandamus. We will address the issues
in that order.
6
Because the City did not authorize or ratify the filing of this lawsuit, it should have been
dismissed.
We turn first to the district court's ruling on Imming's motion to dismiss the City's
declaratory judgment action. Claiming that the City Manager was not authorized to
initiate litigation on the City's behalf, Imming contended that because the City's
governing body did not authorize the declaratory judgment action, the court should
dismiss the City's action as an ultra vires act of a municipal official. In other words, filing
the lawsuit exceeded the power of his office.
In its ruling, the district court agreed with Imming that the City Manager was not
authorized to challenge Imming's petition. But, it concluded that the defeat of
Manspeaker's motion constituted ratification of the City Manager's actions. Additionally,
the district court ruled that Imming's motion to dismiss was made moot by Imming's
filing a counterclaim for mandamus. In the district court's view, the filing of the
counterclaim prior to a ruling on the motion to dismiss gave the City standing to defend
the counterclaim. We disagree with the district court's ruling that the City has ratified the
filing of the declaratory judgment action but agree with its view on the effect of Imming's
counterclaim for mandamus.
To us, Imming argues that only the governing body has standing to initiate
litigation on the City's behalf. The district court clearly agreed with Imming on this point.
That ruling was not cross-appealed by either the City or Jayhawk Racing, meaning it is
now the settled law of the case and the doctrine of res judicata applies. See Waterview
Resolution Corp. v. Allen, 274 Kan. 1016, 1023, 58 P.3d 1284 (2002). Therefore, we
reject the City's attempt to raise this issue in its appellate brief. But we must explore the
nature of ratification more in order to rule properly on this point.
7
Municipal government authority in Kansas is exercised by council members
voting, in open meetings, on the various ordinances, resolutions, and motions that the
issues of the day bring before the council. Thus, through public debate, discussions, and
voting at open meetings, the interests of the public are protected and promoted. Cities are
often called municipal corporations for good reasons, for the city council is the functional
equivalent of a corporation's board of directors. A city's power to act begins with the city
council. The governing body of the City of Topeka consists of nine district Council
members and one mayor. While authority to act is often delegated to various agents, their
actions cannot bind the City to a particular position or action unless the Council has
authorized the agent to so act or has ratified the agent's act after the action has taken
place.
Generally, in order to constitute ratification, there must be some affirmative action
approving the action. The dictionary definition of "ratify" is "[t]o give formal sanction or
approval to and thereby validate" some actions. Webster's II New College Dictionary p.
919. In the law of agency context, which is appropriate here, Black's Law Dictionary
1452 (10th ed. 2014) advises that ratification is "[t]he affirmance of someone's prior act,
whereby the act is given the same effect as if it had been done by an agent acting with
actual authority."
We see nothing in this record that indicates the City has taken any affirmative step
to authorize the City Manager to file this declaratory judgment action. We also see
nothing in this record that indicates the City has ratified the filing of this action against
Imming.
We recognize that in some contexts a principal can ratify an act of an agent by not
repudiating the act promptly upon learning of the action. This is sometimes referred to as
acquiescence.
8
In Theis v. duPont, Glore Forgan Inc., 212 Kan. 301, 510 P.2d 1212 (1973), the
Kansas Supreme Court agreed with the district court that when a customer selling pork
belly contracts failed to promptly repudiate the futures contracts made by a futures broker
on his behalf, then such failure to repudiate constituted ratification of the contracts made
on his behalf. The court considered the number of trades made by the broker and the
inaction of the customer even though he had knowledge of the trades.
Further, it is clear that the burden is on the principal to promptly repudiate an
agent's action once the action becomes known. Once the act is discovered, the principal
may not "'sit back and see if it will benefit or suffer from the agent's actions. Instead, a
principal who receives notice of an unauthorized act of an agent must promptly repudiate
the agent's actions or it is presumed that the principal ratified the act.'" Bunge Milling,
Inc. v. City of Atchison, 49 Kan. App. 2d 325, 333, 310 P.3d 1064 (2013). In Bunge
Milling, the milling company, while resisting the attempted annexation of its land into the
city, attempted to repudiate the recording of a survey plat of its ground 5 years earlier by
a surveyor it had hired. The company did not know the plat had been recorded until the
city tried to annex the land. Lack of knowledge of the act of the agent was crucial in that
case.
But the City is a unit of government subject to the Kansas Open Meetings Act for
its actions. There are different legal expectations for municipal government actions than
those expected of a private individual selling pork belly contracts or a milling company
surveying its land. In dealing with cities, there must be some affirmative act to ratify or
some action taken by the governing body that is consistent with ratification in order to
ratify some unauthorized act of an agent of the city. Otherwise, cities would be able to
avoid a transparent and democratic process by simply acquiescing in the actions of its
agents who lack specific authority for their actions, with no express ratification vote
required. Such a holding would mock the democratic process. Cases outside of Kansas
illustrate our point.
9
In City of Kenai v. Filler, A.I.A., 566 P.2d 670 (Alaska 1977), litigation arose
between the city and an architect who was hired to design a civic center. The contract for
services was negotiated between the architect and the city manager. After issues arose
and litigation began, the district court found that the city council had ratified the city
manager's modified contract. The Supreme Court of Alaska concluded that the
ratification
"may be made by the affirmative action of the proper officials or by any action or
non-action which in the circumstances amounts to an approval of the contract."
566 P.2d at 675.
Although the city council in Kenai did not specifically ratify a modified contract, it did
take action by voting to direct the city manager to let the bids on the modified project.
In a Florida case, the city manager terminated a contract, an act which exceeded
the scope of the city manager's authority. Panama City v. T & A Utilities Contr., 606 So.
2d 744, 745-46 (Fla. Dist. App. 1992). After reviewing the case and the findings of the
trial court, the District Court of Appeal of Florida determined that the city council
"clearly ratified the Manager's act" when it voted to award a contract to a different
contractor after "the Manager had explained that Contractors had been terminated." 606
So. 2d at 747. The appellate court was willing to make this finding because ratification
was clearly the intent of the governing body and was "the only conclusion consistent with
reason and common sense." 606 So. 2d at 747.
This is not a new concept in the law of ratification. In American H. L. Co. v. City
of Benton, 132 Ark. 41, 200 S.W. 276 (1918), the Arkansas Supreme Court, in a lawsuit
seeking the recovery of the cost of lumber used in a street repair, ruled that discretion had
been bestowed on the street committee to take the steps necessary to repair the street and,
therefore, the city was liable for the cost of the lumber. The court stated: "In order to
10
have ratification, there must be some affirmative action by the proper officers, or some
negative action, which of itself would amount to an approval of the matter in question."
200 S.W. at 277.
Finally, the case that is most illuminating comes from the Idaho Supreme Court. In
City of McCall v. Buxton, 146 Idaho 656, 658, 201 P.3d 629 (Idaho) (2009), the city
manager, on behalf of the city, and without the prior approval of the city council, filed a
legal malpractice action against two lawyers that had represented the city. In seeking
dismissal of the lawsuit, the lawyers contended that the action against them was barred
since the city had not authorized the filing of the lawsuit and the city could not later ratify
a void act.
In rejecting the lawyers' argument, the Idaho Supreme Court found that the city
manager was an agent of the city council, and then ruled:
"A principal may ratify the unauthorized act of its agent with the effect being
essentially the same as if the act had been authorized when it occurred . . . . Therefore,
the fact that the city manager did not have authority to authorize the commencement of
this lawsuit does not require dismissal where the city council later ratified that action in
a meeting that complied with the open meeting laws." (Emphasis added.) 146 Idaho at
667.
The record here clearly indicates that the City did not authorize the filing of this
declaratory judgment lawsuit. In a deposition, the mayor testified that at its October 21,
2014, meeting, the Council did not take any affirmative action to authorize the City
Manager to file this litigation. The only action taken by the Council on that date was the
refusal to suspend the Council's rules in order to allow a discussion on whether the City
Manager should be directed to not file the declaratory judgment action. All that we can
glean from that vote is that six members of the Council did not want to suspend the rules
and consider an item that was not on its published agenda. Under the standard set out in
11
City of McCall, the Council's refusal to consider the issue cannot be a ratification of the
filing of a lawsuit. See 146 Idaho at 666.
The most salient point in City of McCall is that a city must take action in
compliance with the open meetings law. Our search of this record reveals no action was
taken by the City in any open meeting concerning filing the declaratory judgment action.
Therefore, under the reasoning of City of McCall, the City Council could not ratify
the City Manager's decision to file this lawsuit without an open, affirmative vote on the
matter or by taking some action consistent with ratification. The defeat of Manspeaker's
motion to suspend the rules, which is the only act that the City urges us to equate with
ratification, meant only the Council chose not to suspend the rules that evening. The
refusal to amend the Council's procedural rules is ineffective as implied ratification.
Besides, the lawsuit was not filed until the next day and Manspeaker's motion could not
be rationally construed as authorization to file a declaratory judgment action. The district
court erred in its ruling on ratification. Imming's motion to dismiss should have been
granted on this ground.
But, even though we have so ruled, that does not mean our work is finished.
Imming filed a counterclaim seeking a writ of mandamus compelling the City to repeal
the ordinance or hold an election. We must, therefore, review all of the substantive issues
raised by the City in its declaratory judgment action.
Ordinance No. 19915 is a legislative ordinance.
Administrative ordinances are not subject to the initiative and referendum petition
process. See K.S.A. 12-3013(e)(1). The district court incorrectly concluded that
Ordinance No. 19915 is an administrative ordinance. It ruled so, based on a belief that the
Ordinance required specialized knowledge of municipal government and finances.
12
Imming concedes in his brief that Ordinance No. 19915 has some administrative
matters but contends that the primary nature of the ordinance is legislative, since the
subject of the ordinance is the acquisition of a racing facility financed through the sale of
sales tax and revenue bonds.
Caselaw directs that we must look to the ordinance that the electors seek to repeal
in order to decide if it is legislative or administrative. City of Wichita v. Kansas
Taxpayers Network, Inc., 255 Kan. 534, 539, 874 P.2d 667 (1994).
The most recent case on this issue is McAlister v. City of Fairway, 289 Kan. 391,
399, 212 P.3d 184 (2009), which noted that deciding whether an ordinance proposed
under the initiative and referendum statute is administrative or legislative depends on the
unique facts of each case. When making this determination, appellate courts should keep
in mind that 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." 289 Kan. at
401.
The McAlister court refined the test for determining whether an ordinance is
administrative or legislative in nature by establishing these guidelines:
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.
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.
13
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.
4. If the subject is one of statewide concern in which the legislature has
delegated decision-making power, not to the local electors, but to the local
council or board as the state's designated agent for local implementation of
state policy, the action receives an "administrative" characterization.
289 Kan. at 403-04.
Looking at the first element of the McAlister test, we conclude that Ordinance No.
19915 creates a new law. First, it doubles the size of the redevelopment district. It permits
the acquisition of Jayhawk Racing's interests to the racetrack, thus securing title in the
property with the City. The Ordinance eliminates any debtors claim on the property.
Thus, the City achieves an unencumbered interest in the track. This is a general and
permanent solution to the revival of the development district.
Next, the declaration of public policy made in the Ordinance makes this a
legislative act. Section 13 of the Ordinance states:
"The Governing Body hereby finds and determines that the proposal to request authority
to issue additional STAR bonds in excess of the amount previously approved is
appropriate, desirable, and necessary to promote, stimulate, and develop the general and
economic welfare of the City of Topeka, and to promote the general welfare of its
citizens."
These are legislative findings, not administrative.
14
We agree that there are administrative aspects to this Ordinance. The bonding
details found in the Ordinance are examples of that.
Finally, we cannot see this as a subject of statewide concern as contemplated by
the McAlister test. The acquisition of a racetrack by the City is clearly a local concern.
We agree with the district court that the centerpiece of Ordinance No. 19915 is the
acquisition of the Heartland Park Raceway. This overriding purpose of the ordinance
simply outweighs the procedural details that are necessary to obtain STAR bonds. It does
not appear that Ordinance No. 19915's administrative characteristics outweigh the general
purpose of the ordinance, which is the purchase of a race track.
We reject the City's (joined by Jayhawk Racing) assertion that simply because this
project is to be financed by STAR bonds, then this is automatically an administrative
ordinance beyond the reach of initiative and referendum. For support, both appellees cite
Rauh v. City of Hutchinson, 223 Kan. 514, 575 P.2d 517 (1978).
In 1974, Cargill, Inc. approached the city commission of Hutchinson about issuing
industrial revenue bonds to refinance major plant improvements and expansion of a
nearby salt plant. Based on K.S.A. 12-1740 et seq., the city issued $5 million of industrial
revenue bonds. The Supreme Court ruled the action by a city governing body in the
adoption of ordinances implementing the issuance of industrial revenue bonds under
K.S.A. 12-1740 et seq. is administrative in character and not subject to initiative and
referendum under the provisions of K.S.A. 12-3013. Rauh, 223 Kan. 514, Syl. ¶ 6.
The Rauh court ruled that the legislature enacted broad general provisions and
policy and delegated to the city the administrative function of "filling in the details" when
it comes to issuing industrial revenue bonds. When discussing the submission of such
questions to a referendum, the court opined:
15
"One may question the reasoning behind the legislature's action in not providing
such procedures (referendum) under K.S.A. 12-1740 et seq. However, a close
examination of the statutes may provide an answer. The statutes themselves contain
strong and binding safeguards for the public. The obligations for payment of the bonds
and interest thereon shall not in any respect be payable as a general obligation of the city
nor shall they be payable in any manner from taxation. The bonds are payable solely and
only from the revenues derived from the facilities finances." 223 Kan. at 521.
If this case dealt with industrial revenue bonds, Rauh would be pertinent, but this
case deals with STAR bonds, an entirely different financing instrument. Industrial
revenue bonds can never be an obligation of the City. There is no method for filing a
protest petition in the case of industrial revenue bonds. Thus, Rauh is neither controlling
nor persuasive.
As we decide whether this Ordinance is administrative or legislative, a review of
several cases is helpful at this point. Ordinances dealing with public improvements
appear to be legislative.
In State, ex rel., v. Jacobs, 135 Kan. 513, 517, 11 P.2d 739 (1932), the Kansas
Supreme Court granted a writ of mandamus when it found an ordinance declaring the
city's intent of widening a street in Hays was legislative. The real gist of the ordinance
was the determination to widen Park Avenue and provide for the payment of the costs
thereof. This ordinance was distinctly legislative in nature, and the method of payment
was incidental thereto. The ordinance provided for condemnation and appropriation of
private property for such widening purposes.
In Jacobs, 135 Kan. at 516, the court distinguished State, ex rel., v. City of
Kingman, 123 Kan. 207, 254 P. 397 (1927), where it was held after a resolution, instead
of an ordinance, had been adopted and published by the commissioners declaring the
improvement of the street to be necessary, that the later ordinance providing for the
16
details of painting the same was administrative and not subject to the referendum statute.
Thus, the resolution was legislative and the ordinance was administrative.
The Jacobs court also contrasted Palmer v. Munro, 123 Kan. 387, 255 P. 67
(1927), and State, ex rel., v. Morton, 128 Kan. 125, 276 P. 62 (1929), where it was held
that the cooperation of the city government with the federal and state authorities in
establishing a connecting road through the city was an administrative detail and not
subject to the control of the referendum statute relating to legislation by ordinance.
In State, ex rel., v. Charles, 136 Kan. 875, 878, 18 P.2d 149 (1933), the Supreme
Court ruled that the question concerning the ordinance for building and equipping a
municipal gas plant was legislative in nature and, therefore, subject to an initiative and
referendum.
In State, ex rel., v. City of Pratt, 92 Kan. 247, 252, 139 P. 1191 (1914), the
Supreme Court ruled that the ordinance dealing with the creation of an electric plant in
the city of Pratt was a legislative question and, therefore, subject to initiative and
referendum.
On the other hand, a municipality's exercise of some home rule powers appears to
be administrative. In City of Wichita v. Kansas Taxpayers Network, Inc., 255 Kan. 534,
874 P.2d 667 (1994), Wichita used a charter ordinance in an attempt to exempt itself
from certain provisions of the Kansas Water Pollution Act. The city also adopted a
resolution to establish a storm water utility system. The Kansas Taxpayer Network
sought repeal of the ordinance through initiative and referendum. The Supreme Court
ruled that the ordinance in question was administrative in nature. The court held that the
operation, management, and financing of a citywide storm water management system
reasonably fits within the context of decisions that require specialized knowledge and
experience with respect to city management. This was especially true because the city
17
already owned the system. The physical structure of the system maintenance and fee
assessment in collection all fit within the purview of the city's expertise. 255 Kan at 540.
In City of Lawrence v. McArdle, 214 Kan. 862, Syl. ¶ 5, 522 P.2d 420 (1974), the
Supreme Court held that an ordinance attempting to equalize firemen's salaries with
policemen's salaries was administrative because it dealt with pay issues and could not be
permanent and, therefore, legislative and subject to initiative and referendum.
After applying the tests found in McAlister and considering all of these cases, our
view remains that Ordinance No. 19915 is legislative and not administrative.
This Ordinance purchased Heartland Park, a legislative act. We hold that the
district court erred on this point. We now turn to the deciding issue of the case—whether
Imming is entitled to a writ of mandamus.
Ordinance No. 19915 is subject to referendum or election under another statute and
therefore cannot be a subject of initiative and referendum.
Ultimately, we must decide whether Ordinance No. 19915 is subject to initiative
and referendum. Therefore, in deciding this, we must consider two statutes.
First, the initiative and referendum law sets out when and how the initiative
petition procedure is to be used. The statute allows the citizens of the city to petition the
city council to adopt a proposed ordinance. Once a proper petition is presented, the city
council may choose to adopt it by a majority vote of the council within 20 days of its
proper submission or, if it fails to pass it within 20 days, the city council must submit the
ordinance to a vote of the qualified voters in the city. K.S.A. 12-3013(a). The statute also
makes it clear when the initiative and referendum process cannot be used. K.S.A. 12-
18
3013(e)(3) states: "[O]rdinances subject to referendum or election under another statute"
cannot be the subject of an initiative and referendum petition.
This leads us to the second statute we must consider. K.S.A. 2014 Supp. 12-
17,169(b)(2) creates the procedure for challenging the issuance of STAR bonds. The
statute states that the bonds will issue unless a "protest petition signed by 3% of the
qualified voters of the city is filed." If a protest petition with sufficient signatures is
submitted within the time allowed, "no full faith and credit tax increment bonds shall be
issued until the issuance of the bonds is approved by a majority of the voters voting at an
election thereon." K.S.A. 2014 Supp. 12-17,169(b)(2).
So the question we must decide is whether Ordinance No. 19915 is subject to
referendum or election under K.S.A. 2014 Supp. 12-17,169(b)(2). If it is, then it cannot
also be subject to the initiative process under K.S.A. 12-3013.
Obviously, the legislature has directed that many questions like these must be
decided by the use of protest petitions authorized in many different laws, while there is
but one way to obtain initiative and referendum relief and that is directed by K.S.A. 25-
3601 et seq. There are almost 40 different areas where one may obtain a referendum on a
specific project through the use of protest petitions. This is especially true when a city
authorizes a tax or a bond issue. See Ramcharan-Maharajh v. Gilliland, 48 Kan. App. 2d
137, 141, 286 P.3d 216 (2012). There is no independent, constitutional right to an
initiative; any authority to hold a referendum must come from the legislature.
Ramcharan-Maharajh, 48 Kan. App. 2d at 140.
By exempting ordinances subject to referendum or election under another statute,
from the initiative process, the legislature has declared that such questions are to be
decided by using the more specific statutory provision. In this case, the STAR bond
protest petition process governs.
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Imming argues that the district court erred by expanding K.S.A. 12-3013(e)(3) to
the entirety of Ordinance No. 19915. Arguing that this is a case of first impression, since
the term "referendum" is not defined by the legislature and has not been evaluated by a
Kansas appellate court, Imming believes that only Section 11 of Ordinance No. 19915 is
subject to a protest petition. That is the section of the ordinance that established the
issuance of STAR bonds. Imming believes that the City could still accomplish the
purchase of Heartland Park through the use of a different type of bond.
Black's Law Dictionary 1471 (10th ed. 2014) defines "referendum" as "[t]he
process of referring a state legislative act, a state constitutional amendment, or an
important public issue to the people for final approval by popular vote." This is the
process that appears to be established by K.S.A. 2014 Supp. 12-17,169(b)(2). If a protest
petition with sufficient signatures is submitted within the time allowed, "no full faith and
credit tax increment bonds shall be issued until the issuance of the bonds is approved by a
majority of the voters voting at an election thereon." K.S.A. 2014 Supp. 12-17,169(b)(2).
Imming's suggestion that because the legislature failed to include the word
"protest" in K.S.A. 12-3013(e)(3), then the election procedure set out in the STAR bond
law does not exclude Ordinance No. 19915 from the initiative and referendum petition
process, is unpersuasive. That argument ignores the fact that the protest petition is merely
the vehicle to collect signatures and force a vote. The result of the protest petition is an
election which puts an important issue of public policy to the people for final approval;
that is to say, an event which appears to be both a referendum and an election as set out in
the definitions above.
Imming's argument requires us to examine the ordinance in some detail. The
description of Ordinance No. 19915 says that its purpose is to "amend [] the Heartland
Park Redevelopment Project Plan, and approv[e] a request to the Secretary of Commerce
of the State of Kansas for authority to issue additional sales tax and revenue ('STAR')
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bonds in excess of the amount previously approved." The STAR bonds are mentioned
through most of the introductory sections of the ordinance. This language was
emphasized by the City Attorney in his deposition when he testified that the purpose of
Ordinance No. 19915 was to approve the amended plan.
There are 15 active sections in the Ordinance. Section Three confirms that the
expanded redevelopment district is indeed a STAR bond project area. Section Nine
confirms that the amended project plan is "the STAR bond project plan" for the amended
redevelopment district. Section 11 is the section that authorizes the City to issue full faith
and credit STAR bonds in the amount of $5,000,000 to finance the amended project plan.
Section 14 authorizes the City Manager to apply for the approval of the new STAR bonds
from the Department of Commerce. Ordinance No. 19915 also incorporates by reference
the amended project plan. The first paragraph of that amended project plan describes the
process for obtaining STAR bonds, and there are mentions of STAR bond financing
throughout the amended project plan.
Basically, Imming is arguing that only a portion of the Ordinance was subject to
referendum or election under another statute; therefore, the question of the purchase of
Heartland Park should still be subject to initiative and referendum. That argument ignores
the fact that STAR bonds are referred to throughout both the ordinance and the amended
project plan.
In addition, there is no severability provision within Ordinance No. 19915. In our
view, given how intertwined the STAR bond funding is with the rest of the ordinance, it
does not appear that Ordinance No. 19915 does anything if the STAR bond provisions
are removed. How can the City acquire the reversionary interest if the City does not pay
for it? How can the City validly designate a new district without issuing new STAR
bonds to be financed through sales and revenue taxes? Simply put, if you attack this
ordinance you are attacking the issuance of STAR bonds.
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The only way that Imming could prevent application of K.S.A. 12-3013(e)(3) from
invalidating his petition is if the protest petition mechanism established by K.S.A. 2014
Supp. 12-17,169(b)(2) is not a referendum or election, as contemplated by the statute.
None of the parties contend that Imming's petition was a protest petition of the
issuance of STAR bonds. The wording of K.S.A. 2014 Supp. 12-17,169(b)(2) is clear. A
citizen must challenge the issuance of STAR bonds by circulating a protest petition. If
that protest petition garners enough signatures, the matter of the issuance of STAR bonds
must be placed for a popular vote. This election is an "election under another statute" as
contemplated by the legislature in K.S.A. 12-3013(e)(3).
Given that Imming's initiative petition is not a protest petition, it falls within the
statutory exclusion for initiative and referendum. This issue cannot legally be the subject
of initiative and referendum.
K.S.A. 60-801 directs that mandamus is a proceeding to compel some board or
some corporation to perform a specified legal duty. Imming is not entitled to a writ of
mandamus because the Council is not legally required to repeal Ordinance No. 19915 or
hold a referendum election.
We affirm the district court's denial of Imming's claim for the issuance of a writ of
mandamus.
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