State ex rel. Schmidt v. City of Wichita

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 113,528
STATE OF KANSAS ex rel. DEREK SCHMIDT, Attorney General,
Petitioner,
v.
CITY OF WICHITA, KANSAS, a Municipal Corporation,
Respondent.
SYLLABUS BY THE COURT
1.
Quo warranto is an appropriate means of attacking the validity of a municipal
ordinance.
2.
An appellate court may properly entertain an action in quo warranto if it decides
the issues raised are of sufficient public concern.
3.
Appellate courts generally avoid making unnecessary constitutional decisions.
Thus, where there is a valid alternative ground for relief, an appellate court need not
reach a constitutional challenge.
4.
The fundamental rule of statutory interpretation to which all other rules are
subordinate is that the intent of the legislature governs if that intent can be ascertained. Its
intent is to be derived in the first place from the words used. When statutory language is
1
plain and unambiguous, there is no need to resort to statutory construction. An appellate
court merely interprets the language as it appears; it is not free to speculate and cannot
read into the statute language not readily found there.
5.
K.S.A. 12-3013(a) provides that an ordinance proposed through the initiative and
referendum process shall be filed with the city clerk along with a petition requesting that
the governing body either pass the proposed ordinance or submit it to the electorate for a
vote.
6.
Under the facts of this case, the supporters of a proposed ordinance failed both
absolutely, and substantially, to comply with K.S.A. 12-3013(a) when they did not file
the proposed ordinance with the city clerk.
Original action in quo warranto. Opinion filed January 22, 2016.
Jeffrey A. Chanay, chief deputy attorney general, argued the cause, and Derek Schmidt, attorney
general, Dennis D. Depew, deputy attorney general, Lisa A. Mendoza, assistant attorney general, and
Dwight R. Carswell, assistant solicitor general, were with him on the briefs for petitioner.
Sharon L. Dickgrafe, chief deputy city attorney, argued the cause and was on the brief for
respondent.
The opinion of the court was delivered by
NUSS, C.J.: This is an original action in quo warranto brought by the State on
relation of the Attorney General for a writ declaring an ordinance of the City of Wichita
(City) to be null and void. Relying upon the Kansas initiative and referendum statute,
2
K.S.A. 12-3013, the city council had submitted a general description of the proposed
ordinance as a ballot question, which was approved by city electors during the April 2015
general election.
At the ordinance's core is a provision appearing to reduce the severity level of a
first-offense conviction for possession of 32 grams or less of marijuana and/or related
drug paraphernalia from a misdemeanor to an "infraction" when the offender is 21 years
of age or older. A related provision substantially reduces the accompanying penalties.
The State asks this court to permanently prohibit the City from publishing,
implementing, and enforcing the ordinance because the ordinance: (1) impermissibly
conflicts with and is therefore preempted by uniform state law under the Home Rule
Amendment to the Kansas Constitution, Article 12, § 5(b); (2) was not adopted in
accordance with procedures set out in K.S.A. 12-3013(a); (3) does not contain an
ordaining clause as required by K.S.A. 12-3005; and (4) is essentially administrative in
nature, which excludes it from the scope of the referendum and initiative process under
K.S.A. 12-3013(e)(1).
We agree the ordinance was not enacted in accordance with procedures set out by
K.S.A. 12-3013(a). Because this ruling effectively disposes of the case, we need not
consider the State's remaining arguments. See Elkins v. Moreno, 435 U.S. 647, 661, 98 S.
Ct. 1338, 55 L. Ed. 2d 614 (1978) (courts avoid making unnecessary constitutional
decisions). The writ of quo warranto is issued; the ordinance is null and void.
FACTS AND PROCEDURAL HISTORY
The principal facts are undisputed. Under the city's municipal code, Section
5.26.040(a) (2010) possession of marijuana and/or related drug paraphernalia has been
3
classified as a misdemeanor punishable by a fine not to exceed $2,500 and/or up to 12
months' imprisonment in the Sedgwick County Jail. This version of the code has been
consistent with state criminal statutes. See, e.g., K.S.A. 2014 Supp. 21-5706(c)(2)(A); 21-
5709(e)(2)(B), (3); 21-6602(a)(1); 21-6611(b)(1).
On January 7, 2015, a group known as the Marijuana Reform Initiative (the
Initiative) filed with the Wichita city clerk petitions containing thousands of signatures of
purportedly qualified electors and proposing a change to the municipal code. The
Initiative's proposal amends Section 5.26.040 of the code by repealing that entire section
and adopting substitute provisions.
Subsection (a) of the proposed ordinance reestablishes the general rule, e.g.,
possession is a misdemeanor:
"(a) Except as provided at Subsections (b) and (c) herein, a violation of the
provisions of this Chapter is a misdemeanor and, upon conviction, the sentence shall be a
fine not to exceed two thousand five hundred dollars ($2,500.00), and/or imprisonment of
up to twelve (12) months in the Sedgwick County Jail."
Subsections (b) and (c) purport to describe a reduced severity level and
accompanying penalties for certain first-time possessors of marijuana and marijuana-
related drug paraphernalia:
"(b) A conviction of any person twenty-one (21) years of age or older of Section
5.26.010 for possession of . . . (32) grams or less of cannabis sativa L., or otherwise
known as marijuana, as defined by Section 5.25.005(i), for the first offense, is an
infraction and the sentence shall be a fine not to exceed fifty dollars ($50.00) and no
incarceration, probation, nor any other punitive or rehabilitative measure shall be
imposed. For convictions under this Subsection for offenses in the Old Town
4
Entertainment District, as defined by Section 5.05.020, the sentence shall be the
mandatory minimum fine set forth at Section 5.05.030 and no incarceration, probation,
nor any other punitive or rehabilitative measure, shall be imposed; however, pursuant [to]
Section 5.05.030(b), the Court may order community service in lieu of mandatory
minimum fine in accordance with the provisions thereof. Nothing in this Subsection shall
be construed to restrict eligibility for diversion in lieu of further proceeding or deferred
judgment pursuant Section 1.06.010 et seq.
"(c) A conviction of any person twenty-one (21) years of age or older of Section
5.26.030 for possession of drug paraphernalia, as defined by Section 5.25.005(f), for the
first offense, involving cannabis sativa L., or otherwise known as marijuana, as defined
by Section 5.25.005(i), is an infraction and the sentence shall be a fine not to exceed fifty
dollars ($50.00) and no incarceration, probation, nor any other punitive or rehabilitative
measure shall be imposed. For convictions under this Subsection for offenses in the Old
Town Entertainment District, as defined by Section 5.05.020, the sentence shall be the
mandatory minimum fine set forth at Section 5.05.030 and no incarceration, probation,
nor any other punitive or rehabilitative measure shall be imposed; however, pursuant [to]
Section 5.05.030(b), the Court may order community service in lieu of mandatory
minimum fine in accordance with the provisions thereof. Nothing in this Subsection shall
be construed to restrict eligibility for diversion in lieu of further proceeding or deferred
judgment pursuant Section 1.06.010 et seq." (Emphasis added.)
Subsection (d) describes the intent of subsections (b) and (c):
"(d) The intent of Subsections (b) and (c) of this Chapter is to reduce first offense
convictions pursuant Sections 5.26.010 and 5.26.030 for cannabis sativa L., or otherwise
known as marijuana, as defined by Section 5.25.005(i), to be an infraction, and not a
misdemeanor. For the purpose of determining whether a conviction is a first or
subsequent offense under Subsections (b) and/or (c), any conviction or convictions
resulting from the same incident occurring after July 1, 2015, shall constitute a first
offense and any subsequent conviction or convictions occurring within one (1) year
thereafter shall constitute a subsequent offense." (Emphasis added.)
5
Subsection (d) also describes other matters relating to these particular first-time
offenders, especially limiting the referral of such charges by city law enforcement and
city prosecutors. The subsection further redefines convictions of these first offenses for
purposes of reporting to those law enforcement agencies maintaining criminal records
and for later calculation of criminal histories for sentencing offenders:
"Nothing herein shall be construed to restrict law enforcement officers of the City of
Wichita, Kansas, to complain of violations of offenses other than Subsections (b) and (c)
of this Chapter. No law enforcement officer of the City of Wichita, Kansas, or his or her
agent, shall complain of violations of these Subsections [b and c] to any other authority
except the City Attorney of the City of Wichita, Kansas; and, furthermore, the City
Attorney of the City of Wichita, Kansas, or any of his or her authorized assistants, shall
not refer any said complaint to any other authority for prosecution. No convictions
pursuant Subsections (b) and/or (c) of this Chapter shall be recorded as a misdemeanor
to the Kansas Bureau of Investigation Central Repository or any other state or federal
law enforcement reporting agency." (Emphasis added.)
Subsection (e) provides that should the State ever reduce the penalties below what
the City dictates for possession of marijuana and drug paraphernalia as described in
subsections (b) and (c), the State's lower penalties shall prevail:
"(e) Should the State of Kansas enact lesser penalties than that set forth in
Subsections (b) and (c) of this Chapter for possession of cannabis sativa L., or otherwise
known as marijuana, as described therein, or possession of drug paraphernalia, as further
described therein, then these Subsections, or relevant portions thereof, shall be null and
void. The invalidity or unenforceability of any provisions of Subsections (b) and (c) shall
not affect the validity or enforceability of other provisions thereof, which shall remain in
full force and effect."
6
And subsection (f) provides for a mandatory evaluation of offenders under 21
years of age:
"(f) In addition to any other sentence authorized by this Chapter, any person
convicted of having violated the terms of this Chapter, while under twenty-one (21) years
of age, shall be ordered to submit to and complete a community-based alcohol and drug
safety action program certified pursuant to K.S.A. 8-1008 and amendments thereto and to
pay a fee for such evaluation. If the judge finds that the person is indigent, the fee may be
waived."
The Initiative did not include a copy of this proposed ordinance when it filed its
signed petition with the city clerk on January 7. Nor was the proposed ordinance fully set
forth in the signed petition, which stated in relevant part:
"I, the undersigned, a qualified elector of the City of Wichita, Kansas, request
that the following proposed ordinance, without alteration, be passed or referred to a vote
[by] the electors pursuant to the provisions of Chapter 25-3801 of the Kansas Statutes:
"Shall the following be adopted?
"AN ORDINANCE REDUCING THE PENALTY FOR FIRST OFFENSE
CONVICTION FOR POSSESSION OF THIRTY-TWO (32) GRAMS OR LESS OF
CANNABIS SATIVA L., OTHERWISE KNOWN AS MARIJUANA, AND/OR DRUG
PARAPHERNALIA RELATED THERETO, BY PERSONS TWENTY-ONE (21)
YEARS [OF] AGE OR OLDER, TO AN INFRACTION WITH A FINE NOT TO
EXCEED FIFTY DOLLARS ($50.00)."
After the City received notice from the Sedgwick County Election Office that the
petition contained the requisite number of signatures of qualified electors as described in
K.S.A. 12-3013(a), on January 27 the city council voted per that statute to submit the
issue to the electors at a special election. On March 5, the Attorney General released his
7
opinion concluding that "a court would find the proposed ordinance void because it
would conflict with state laws in numerous ways." Att'y Gen. Op. No. 2015-4. Among
other things, the opinion noted that it appeared the petition did not comply with several
requirements of K.S.A. 12-3013.
Despite the Attorney General's opinion, a majority of the city's electorate voting in
the April 7 general election approved the ballot question. Rather than stating the proposed
ordinance in full, the ballot contained a general description of the ordinance contents
similar to the one appearing in the Initiative's petitions—a ballot summary authorized by
K.S.A. 12-3013(b).
The day after the election, the City filed a declaratory judgment action in
Sedgwick County District Court, asking for a determination of the new ordinance's
validity. The next day the State filed its petition in quo warranto in this court and asked
us to declare the ordinance null and void. It also filed a motion to stay the district court
proceedings and a motion for temporary restraining order, which sought to stay the
publication, implementation, or enforcement of the ordinance. We ordered the City to
respond and granted the State's motion for stay of the district court proceedings.
In the City's responsive pleadings, it asked that we either dismiss the State's
petition or decline to exercise our jurisdiction and transfer the quo warranto action to the
district court for resolution. But it agreed with the State that justice would be best served
by staying the publication, implementation, and enforcement of the ordinance during the
pendency of this case.
After considering the City's response, we issued another order retaining
jurisdiction over the quo warranto action, requiring additional briefing, and setting oral
argument. We also denied the State's motion for temporary restraining order. But we
8
issued a more general order prohibiting the City from publishing, implementing, or
enforcing this ordinance until further order of the court. In the same order, we continued
to stay the district court proceedings.
This court is generally granted original jurisdiction over actions in quo warranto
under Article 3, § 3 of the Kansas Constitution and K.S.A. 60-1202.
Additional facts will be added as necessary to the analysis.
ANALYSIS
Issue: The ordinance is null and void because its proponents failed to follow the
procedural requirements of the Kansas initiative and referendum statute, K.S.A. 12-3013.
Quo warranto jurisdiction
An action in quo warranto seeks to prevent the exercise of unlawfully asserted
authority. Such an action demands that an individual or corporation—e.g., a municipal
corporation—show "by what authority" it has engaged in the challenged action. See State
v. Leavenworth, 75 Kan. 787, 791, 90 P. 237 (1907) ("The law specifically authorizes the
use of quo warranto to restrain municipalities from usurping power and to hold them
within the bounds of lawful authority."). It is well established that quo warranto is an
appropriate means of attacking the validity of a municipal ordinance. Sabatini v. Jayhawk
Construction Co., 214 Kan. 408, 413-14, 520 P.2d 1230 (1974).
The City argues quo warranto is inappropriate and requests we either dismiss the
State's action or transfer it to the district court. It continues to contend that the more
appropriate remedy is a declaratory judgment obtainable in the district court. The City
9
also argues it did not overstep its authority in submitting the proposed ordinance to the
electors.
The State responds by primarily arguing that we face an issue of significant public
concern allowing our exercise of discretionary jurisdiction in quo warranto. It further
contends the initiative and referendum process contained in K.S.A. 12-3013 does not
require the City to adopt an "otherwise unlawful" ordinance submitted by petition.
Admittedly, quo warranto generally will not lie when another plain and adequate
remedy exists. But this court has traditionally been somewhat lenient on enforcement of
that general rule. See State, ex rel., v. Allen County Comm'rs, 143 Kan. 898, 904, 57 P.2d
450 (1936) ("We need not and do not rest this decision [whether to grant relief in quo
warranto] solely on the ground another adequate remedy exists in the instant case."). In
recognizing our discretion to exercise original jurisdiction in quo warranto, we have
further said: "This court may properly entertain this action in quo warranto and
mandamus if it decides the issue is of sufficient public concern." State ex rel. Stephan v.
Kansas House of Representatives, 236 Kan. 45, 53, 687 P.2d 622 (1984).
In our May 14 order, we retained jurisdiction over this action pursuant to our
authority granted by the people in Article 3, § 3 of the Kansas Constitution. See Gannon
v. State, 298 Kan. 1107, 1142, 319 P.3d 1196 (2014) ("We have long held that
constitutions are the work of the people."). We conclude at least two questions are of
sufficient public concern to warrant potential relief in quo warranto. See Stephan, 236
Kan. at 53. The first is the possible conflict between the criminal statutes of the entire
state and, to date, the ordinance of one municipality. The second is the possible
significance of failure to comply with the language of a statute authorizing the people to
submit directly to a city's governing body an ordinance they propose to become law. See
McAlister v. City of Fairway, 289 Kan. 391, 402, 212 P.3d 184 (2009) (statutory initiative
10
and referendum process is an electoral option reserved to the citizens by the legislature);
State, ex rel., v. City of Hutchinson, 93 Kan. 405, 144 P. 241 (1914). Accordingly,
pursuant to our discretion we shall maintain jurisdiction in this quo warranto action.
Discussion
1. The Home Rule Amendment to the Kansas Constitution
The State primarily argues that while the Home Rule Amendment to the Kansas
Constitution provides that cities are empowered to determine their local affairs by
ordinance passed by their governing body, the City's ordinance violates this amendment
by impermissibly conflicting with state law. See Kan. Const. art. 12, § 5(b); Steffes v.
City of Lawrence, 284 Kan. 380, 385-86, 160 P.3d 843 (2007). It alleges this conflict
appears in four basic areas of the ordinance: marijuana possession, drug paraphernalia
possession, duties of law enforcement officers, and offense recording and reporting.
The City candidly concedes that two parts of subsection (d) of the ordinance
"appear to" conflict with state law, i.e., are unconstitutional: "the ordinance's directions to
law enforcement regarding referral of charges and its system of determining prior offenses
for sentencing purposes." But it argues other provisions "are arguably not in direct conflict
with state law" and should be upheld as severable from those two parts.
In less-emphasized arguments, the State also contends that the Initiative did not
comply with the K.S.A. 12-3013 procedures when filing its petition, that the ordinance
contains no ordaining clause, and that the ordinance's administrative nature precludes the
electors' use of K.S.A. 12-3013. But the State urges us instead to decide the constitutional
issue because it is one of substantial public concern and our ruling potentially will have
statewide consequences.
11
At the threshold, however, we must acknowledge that "[a]ppellate courts generally
avoid making unnecessary constitutional decisions." Wilson v. Sebelius, 276 Kan. 87, 91,
72 P.3d 553 (2003); see Elkins, 435 U.S. at 661 (reiterating the Court's "long-standing
policy of avoiding unnecessary constitutional decisions"); Machinists v. Street, 367 U.S.
740, 749, 81 S. Ct. 1784, 6 L. Ed. 2d 1141 (1961) (recognizing there are "restraints
against unnecessary constitutional decisions"). Accordingly, we have held: "[W]here
there is a valid alternative ground for relief, an appellate court need not reach
constitutional challenges." Wilson, 276 Kan. at 91. For this reason, we sometimes have
declined to reach the constitutional question presented in other original actions. See, e.g.,
276 Kan. at 91-92 (original action in mandamus and quo warranto); Rogers v. Shanahan,
221 Kan. 221, 223, 565 P.2d 1384 (1976) (original action in mandamus).
Here, by first deciding the issue of compliance with statutory procedures, we
eliminate the need to determine whether the proposed ordinance is constitutional under
the Home Rule Amendment. See Wilson, 276 Kan. at 92 ("[A] decision in petitioners'
favor on the interpretation of the statute would eliminate the necessity for the court to
reach the constitutional question."). To instead consider the substantive constitutional
issue first—followed by a decision for the State on procedural grounds—could result in a
mere advisory opinion on constitutionality, i.e., because the procedural issue alone would
have been determinative of the case. Kansas courts do not issue advisory opinions. See
Gannon, 298 Kan. at 1119.
2. Procedures under K.S.A. 12-3013
The initiative and referendum statute, K.S.A. 12-3013, provides procedures for
"allow[ing] city electors to submit a proposed ordinance to a city's governing body by
petition." McAlister, 289 Kan. at 400. The State claims the ordinance was not passed in
12
accordance with the statute's procedures, pointing to admissions by both the interim city
attorney and the Initiative that a copy of the proposed ordinance was not filed with the
city clerk. See City of Wichita v. Sealpak Co., 279 Kan. 799, 802, 112 P.3d 125 (2005)
("'Admissions against interest made by a party are the strongest kind of evidence and
override other factors.'"). Accordingly, we must determine whether K.S.A. 12-3013
requires the proposed ordinance to be filed with the petition.
Interpretation of statutes and ordinances is a question of law. City of Wichita v.
Hackett, 275 Kan. 848, 850, 69 P.3d 621 (2003). The fundamental rule of statutory
interpretation to which all other rules are subordinate is that the intent of the legislature
governs if that intent can be ascertained. Its intent is to be derived in the first place from
the words used. Shrader v. Kansas Dept. of Revenue, 296 Kan. 3, 9, 290 P.3d 549 (2012).
When statutory language is plain and unambiguous, there is no need to resort to statutory
construction. An appellate court merely interprets the language as it appears; it is not free
to speculate and cannot read into the statute language not readily found there. 296 Kan. at
9-10 (citing Steffes, 284 Kan. at 380, Syl. ¶ 2).
K.S.A. 12-3013(a) describes the interplay between the proposed ordinance and the
petition that calls either for the ordinance's passage by the governing body or its
submission by that body to the electorate for approval:
"(a) Except as provided in subsection (e), a proposed ordinance may be
submitted to the governing body of any city accompanied by a petition as provided by this
section. Such petition shall be signed by electors equal in number to at least 25% in cities
of the first class, and 40% in cities of the second and third class, of the electors who voted
at the last preceding regular city election as shown by the poll books and shall contain a
request that the governing body pass the ordinance or submit the same to a vote of the
electors. Such ordinance and petition shall be filed with the city clerk.
13
"The signatures on the petition need not all be appended to one paper, but each
signer shall include the signer's place of residence, giving the street and number (if there
are street numbers). One person signing each paper shall make oath before an officer
competent to administer oaths that such person believes the statements therein and that
each signature to the paper appended is the genuine signature of the person whose name
it purports to be. If the petition accompanying the proposed ordinance is signed by the
required number of electors qualified to sign, the governing body shall either (a) pass
such ordinance without alteration within 20 days after attachment of the clerk's certificate
to the accompanying petition; or (b) if not passed within 20 days, forthwith call a special
election, unless a regular city election is to be held within 90 days thereafter, and at such
special or regular city election submit the ordinance, without alteration, to the vote of the
electors of the city." (Emphasis added.)
Subsection (b) establishes the conditions for how the proposed ordinance is
presented on the electors' ballot if the governing body itself did not pass the ordinance:
"(b) The ballots used when voting upon the ordinance shall set forth the proposed
ordinance in full or submit the proposed ordinance by title generally descriptive of the
contents thereof. Each proposed ordinance set forth in full or submitted by title generally
descriptive of the contents thereof shall be preceded by the words, 'Shall the following be
adopted?' If there is more than one proposed ordinance to be voted upon, the different
proposed ordinances shall be separately numbered and printed, and the ballots shall
conform to the requirements of K.S.A. 25-605, and amendments thereto." (Emphasis
added.)
Subsection (c) establishes considerable restrictions upon repealing or amending a
previously approved ordinance initially proposed by electors' petition:
"(c) If a majority of the qualified electors voting on the proposed ordinance votes
in favor thereof, such ordinance shall thereupon become a valid and binding ordinance of
the city. Any ordinance proposed by a petition as herein provided and passed by the
14
governing body or adopted by a vote of the electors, shall not be repealed or amended
except (1) by a vote of the electors, or (2) by the governing body, if the ordinance has
been in effect for 10 years from the date of publication, if passed by the governing body,
or from the date of the election, if adopted by a vote of the electors. Any number of
proposed ordinances may be voted upon at the same election, in accordance with the
provisions of this section, but there shall not be more than one special election in any
period of six months for such purpose. Mayors having veto power shall not veto any such
ordinance, and if passed by the council or commission the mayor shall sign the
ordinance." (Emphasis added.)
Subsection (d) in turn establishes steps for how a governing body might eventually
begin the process for the voters to repeal or amend the ordinance which had been initiated
under the petition process and was now law:
"(d) The governing body may submit a proposition for the repeal of any such
ordinance, or for amendments thereto, to be voted upon at any succeeding regular city
election. If such proposition so submitted receives a majority of the votes cast thereon at
such election, such ordinance shall thereby be repealed or amended accordingly.
Whenever any ordinance or proposition is required by this act to be submitted to the
electors of the city at any election, the city shall cause such ordinance or proposition to be
published once each week for two consecutive weeks in the official city paper. Such
publication shall be not more than 20 or less than five days before the election. Any
ordinance heretofore passed or made effective by election under the provisions of section
12-107 of the General Statutes of 1949 shall continue in effect but may be amended or
repealed as herein provided." (Emphasis added.)
Finally, subsection (e) excludes certain topics from the statute's initiative and
referendum process, i.e., the electorate may not use these statutory procedures to initiate
change. See McAlister, 289 Kan. at 393. That subsection provides:
15
"(e) The provisions of this section shall not apply to:
(1) Administrative ordinances;
(2) ordinances relating to a public improvement to be paid wholly or in
part by the levy of special assessments; or
(3) ordinances subject to referendum or election under another statute."
K.S.A. 12-3013(e)."
Given the failure to file a copy of the proposed ordinance with the city clerk, the
City agrees the Initiative did not absolutely comply with the language providing "such
ordinance and petition shall be filed with the city clerk." K.S.A. 12-3013(a). But the City
argues the Initiative substantially complied, which it contends is enough. Substantial
compliance is compliance in respect to the essential matters necessary to assure every
reasonable objective of the statute. Dodge City Implement, Inc. v. Board of Barber
County Comm'rs, 288 Kan. 619, 639, 205 P.3d 1265 (2009).
The State disagrees with the City. So our analysis will include examining the
statutory language to determine the reasonable objectives of this provision. Cf. Northern
Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106, cert.
denied __ U.S. __, 134 S. Ct. 162 (2013) (Even when various statutory provisions are
unambiguous, we may still construe them in pari materia with a view of reconciling and
bringing the provisions into workable harmony.).
We start our analysis by recalling that the first sentence of subsection (a) of the
statute provides what is to be submitted to the governing body. It states: "[A] proposed
ordinance may be submitted to the governing body of any city accompanied by a petition
as provided by this section." (Emphasis added.) K.S.A. 12-3013(a). The last sentence of
the subsection then provides how and where the proposed ordinance is to be submitted to
that governing body: "Such ordinance and petition shall be filed with the city clerk."
(Emphasis added.) 12-3013(a).
16
The second paragraph of subsection (a) provides the next step: a certification that
"the petition accompanying the proposed ordinance is signed by the required number of
electors qualified to sign." (Emphasis added.) K.S.A. 12-3013(a).
This second paragraph of subsection (a) also provides how the governing body
must act once certification has occurred. Essentially, the governing body has two choices:
either pass the proposed—and unaltered—ordinance or else submit it to public vote:
"[It] shall either (a) pass such ordinance without alteration within 20 days after
attachment of the clerk's certificate to the accompanying petition; or (b) if not passed
within 20 days, forthwith call a special election, unless a regular city election is to be held
within 90 days thereafter, and at such special or regular city election submit the
ordinance, without alteration, to the vote of the electors of the city." (Emphasis added.)
K.S.A. 12-3013(a).
In short, three different times in K.S.A. 12-3013(a) the legislature has expressly
linked the petition to the proposed ordinance through some form of the word
"accompany." Accompany means "[t]o go along with." Black's Law Dictionary 20 (10th
ed. 2014); see also American Heritage Dictionary of the English Language 8 (1971)
(defining "accompany" as "[t]o go along with"; and "[t]o coexist or occur with"). And a
petition is "[a] formal written request presented to a court or other official body." Black's
Law Dictionary 1329 (10th ed. 2014). So under K.S.A. 12-3013(a), the petition is the
document that formally requests the governing body to take action, while the proposed
ordinance is the item "going along with" it upon which the action is requested to be
taken.
Other parts of subsection (a) reinforce the State's position that the proposed
ordinance must accompany the petition's filing. After filing "such ordinance and petition
. . . with the city clerk," and after signature certification of "the accompanying petition,"
17
the governing body then shall either "pass such ordinance" or "submit the ordinance" to
the electors. (Emphasis added.) K.S.A. 12-3013(a). And subsection (c) may be said to
generally reinforce this conclusion as it addresses the repealing or amending of `"[a]ny
ordinance proposed by a petition as herein provided and passed by the governing body or
adopted by a vote of the electors." (Emphasis added.) K.S.A. 12-3013(c).
As we continue our analysis, we identify several legislative objectives in the
statutory language. First, the legislature intended that the proposed ordinance be
supported by a sufficient number of qualified electors, i.e., whose identities and petition
signatures were certified. Second, the legislature intended for the entire electorate, even
before any governing body action, to have the opportunity to become fully aware of the
exact, unalterable ordinance being proposed to become the law of their city. Third, before
the governing body took any action on the proposed ordinance, it should have this same
opportunity to be fully aware of what could become the unalterable law for their
constituents. Fourth, if the governing body put the proposed ordinance to the electorate,
the voters should have the same opportunity for full awareness before voting. Each
objective is discussed in turn.
First, regarding certification of supporters of the proposed ordinance, the statutory
language provides: "If the petition accompanying the proposed ordinance is signed by the
required number of electors qualified to sign," the governing body shall either pass the
ordinance or submit it to the electorate. (Emphasis added.) K.S.A. 20-3013(a). "If"
denotes a necessary condition to proceeding. See American Heritage Dictionary of the
English Language 654 (1971) (defining "if" as "on condition that").
Based upon this language, we conclude the legislature intended that before the
governing body is required to expend its time and resources on a proposed ordinance, the
validity of the proponents' support for it must be established. The City appears to agree.
18
The language of Ordinance No. 49-936—which it passed on January 27 to proceed to
city-wide vote—states: "The Sedgwick County Elections Office verified that a sufficient
number of signatures were contained on the petition filed with the City Clerk to require
the City Council to consider the proposed ordinance." (Emphasis added.) See McAlister,
289 Kan. at 400-01 ("Once a petition is submitted with the required minimum signatures
. . . 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." [Emphasis added.]).
This threshold condition would easily begin to be met by presenting to the city
clerk the signed petition "along with" the proposed ordinance to which the petition
relates. Otherwise, the signatures would be certified in a vacuum, i.e., without reference
to the specific ordinance they allegedly support. And the submission of a signed petition
that only summarizes the proposed ordinance—particularly when omitting provisions that
relate to referral of charges by city law enforcement and prosecutors and a redefinition of
convictions of first offenses for purposes of reporting to law enforcement agencies—
leaves doubt that this statutory objective was met.
Second, the statutory language also enables the public to be officially and fully
notified of the advocates' proposed ordinance before the governing body acts on it. Cf.
McAlister, 289 Kan. at 393 (K.S.A. 12-3013[a] "allows city electors to submit a proposed
ordinance to a city's governing body by petition."). In short, the city clerk's office serves
as the official place where any member of the public may fully view any of these
documents, e.g., to knowledgeably prepare for participating in the later city council
meetings where, after certification, the ordinance must be presented for action or to
reliably prepare for advocating a particular position in public regarding the ordinance.
This statutory objective was not met when the proposed ordinance was not on file.
19
Third, these statutory provisions also enable the governing body to be officially
notified of the advocates' verbatim language proposed as the law of the city before the
body must act on it. This filing notification therefore helps enable that body to
responsibly fulfill its duty to the people.
As we stated more than 40 years ago, upon the certification to the city commission
of the electors' signatures, it is "the duty of that body to either pass the ordinance without
alteration, or to call a special election." (Emphasis added.) City of Lawrence v. McArdle,
214 Kan. 862, 863, 522 P.2d 420 (1974); see also State, ex rel., v. City of Pratt, 92 Kan.
247, Syl., 139 P. 1191 (1914) (For a referendum, "[i]t is the duty of the commissioners to
pass such repealing ordinance or submit it at the general election . . . and the performance
of such duty may be compelled by mandamus.").
As we stated even more recently in language echoing this time-honored duty:
"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."
(Emphasis added.) McAlister v. City of Fairway, 289 Kan. at 401 (citing K.S.A. 12-
3013[a] ["[T]he governing body shall either (a) pass such ordinance without alteration . . .
or (b) if not passed . . . submit the ordinance, without alteration, to the vote of the electors
of the city."]).
So without this filing with the clerk of the verbatim language of the proposed
ordinance with the "accompanying petition," the full ordinance cannot reliably be
forwarded by the clerk to the governing body for its careful review. This shortcoming is
significant because this ordinance is one the body must either (1) pass "without
alteration" to become law of the city for at least 10 years before the body can
20
independently repeal or amend it or (2) submit it unaltered to the electorate to potentially
become city law.
The City, however, points to the Bradley affidavit. It states the city attorney's
office and at least two members of the city council already had copies of the proposed
ordinance at the time of the petition's filing with the clerk. But this does not establish that
the other five council members also had copies. While the City also argues the Initiative's
proposed ordinance was discussed at the January 27 city council meeting, the meeting
minutes do not reflect that any of these copies were shared, i.e., they do not disclose the
full council was given the opportunity to be aware of the verbatim language.
And while the city attorney's office had a copy of the Initiative's proposed
ordinance, no copy was attached to those minutes like the two ordinances that office
prepared for the council's consideration. The first was a proposal that was not voted upon:
No. 49-935 ("An ordinance amending the code . . . reducing the criminal penalties for
possession of marijuana"), which simply summarized parts of the Initiative's proposed
ordinance. The second attached ordinance is what the council passed: No. 49-936
(calling for a special election on the issue).
Accordingly, without the full proposed ordinance on file with the city clerk, this
court cannot conclusively determine what version all members of the city council actually
had the opportunity to review before voting to submit its unaltered form to the electorate.
In particular, we cannot know if all of its members had been made aware of those facets
of subsection (d) which relate to first-time offenders, especially limiting the referral of
charges by city law enforcement and prosecutors and redefining convictions of these first
offenses for law enforcement agency reporting purposes. And even assuming all city
council members had received a copy of the proposed ordinance from some unofficial
21
source, the members could not have been sure, absent a side-by-side comparison, that it
was the identical ordinance for which petition signatures purportedly had been certified.
This shortcoming means the city council may have been prevented from
responsibly performing its duty to the people, i.e., this statutory objective was not met.
Fourth, the filing of the proposed ordinance with the clerk allows the electorate the
opportunity to carefully review it in order to cast a fully informed vote if the governing
body places the question on the ballot. Having a verbatim copy officially on file is
particularly important to accomplish this informational goal because subsection (b) of
K.S.A. 12-3013 allows only a general descriptive summary of the ordinance to be placed
on the ballot. And the ballot here in fact simply provided:
"SHALL THE FOLLOWING BE ADOPTED?
"An ordinance reducing the penalty for first offense conviction for possession of
thirty-two (32) grams or less of cannabis sativa L., otherwise known as marijuana, and/or
drug paraphernalia related thereto, by persons twenty-one (21) years of age or older, to an
infraction with a fine not to exceed fifty dollars ($50.00).
"YES ___ NO_____"
The general description of the question on the ballot did not disclose a number of
changes being made to the current city ordinance that some voters could have believed
significant to their decision, e.g., the provisions prohibiting the referral of charges or
redefining convictions for first offenses. In this respect the public's vote echoes the
absences from the earlier city council's vote to forward a proposed ordinance to the
electorate.
22
The City, however, again points to Bradley's affidavit, which states that a copy of
the proposed ordinance was available on the Initiative's website for public viewing. It
also argues the proposed ordinance was widely publicized in the media. But neither a
proponent's website nor the media's message can substitute for an official and thus
incontrovertible statement of the proposed ordinance that is filed with the city clerk, then
signature-certified by the elections office, and ultimately presented by the city clerk to the
city council for its required action. See McAlister, 289 Kan. at 400-01. So without the
proposed ordinance on file, we cannot conclude this objective of the statute has been met:
electors have not been officially advised of the entirety of what the Initiative requests to
become law.
The City has generally argued that substantial, not absolute, compliance with
K.S.A. 12-3013(a) is sufficient. Assuming, without deciding, this is the correct standard,
in addition to what we have already stated, we further observe this case is readily
distinguishable from others in the initiative and referendum area in which that standard
has been applied to aid the party asserting it.
For example, in Eveleigh v. Conness, 261 Kan. 970, 983, 933 P.2d 675 (1997), this
court applied the doctrine of liberal construction to interpret an ambiguity in the recall
petition statute, K.S.A. 25-4325 (Furse 1993), and concluded there was substantial
compliance with its provisions. See 261 Kan. at 983 (affidavits filed by sponsors of
petition for recall swearing to grounds for recall were in substantial compliance with
statute that was ambiguous regarding whether sponsors were required to swear only to
grounds for recall or to contents of entire affidavit). But, unlike in Eveleigh, the statute at
issue here is not ambiguous. K.S.A. 12-3013 plainly states what is expected of electors
who wish to submit an ordinance to the city's governing body to eventually become law.
So our liberal construction of K.S.A. 12-3013 is not required. See Shrader v. Kansas
23
Dept. of Revenue, 296 Kan. 3, 9-10, 290 P.3d 549 (2012) ("When statutory language is
plain and unambiguous, there is no need to resort to statutory construction.").
The situation in the instant case is also distinguishable from the one in State v.
Jacobs, 135 Kan. 513, 11 P.2d 739 (1932), where this court found substantial compliance
with a statute governing protest petitions against the passage of a city ordinance. That
statute required the petition to be filed with the board of city commissioners, but the court
determined that filing the petition with the city clerk constituted substantial compliance.
135 Kan. at 516-17. By contrast, in this case there simply was no effort whatsoever by
the Initiative to comply with the statutory provision that the proposed ordinance be filed
with the city clerk. According to Bradley's affidavit, while she had a copy of the proposed
ordinance with her when filing the petition with the clerk, she did not file it.
CONCLUSION
Given the dispositive nature of our ruling on the filing issues, we need not
consider the State's remaining arguments, including the potential conflict of the city
ordinance with state law. See Elkins v. Moreno, 435 U.S. 647, 661, 98 S. Ct. 1338, 55 L.
Ed. 2d 614 (1978). The ordinance is null and void because the Initiative failed to file with
the city clerk the proposed ordinance along with the petition as set forth in K.S.A. 12-
3013(a).
The State's request for a writ in quo warranto is granted.
***
JOHNSON, J., concurring in part and dissenting in part: I agree with the majority's
conclusion that, by failing to file the proposed ordinance with the city clerk, the
24
Marijuana Reform Initiative (Initiative) did not comply with a statutory requirement
necessary to effect a citizen-initiated city ordinance. Where I part company with the
majority is with its determination that it was proper for this court to retain jurisdiction
over this original action when it was readily apparent that adequate relief was available in
the district court.
Granted, the extent of a municipality's constitutional home rule powers, as
manifested in this case by the alleged conflict between a municipal ordinance and state-
wide criminal law, could provide the rare circumstance justifying a departure from our
general rule of declining concurrent jurisdiction over original actions. See Supreme Court
Rule 9.01(b) (2015 Kan. Ct. R. Annot. 88) ("An appellate court ordinarily will not
exercise original jurisdiction if adequate relief appears to be available in a district
court."). But the majority did not reach the constitutional issue on home rule. Instead, the
majority avoided the question with which the public is most concerned by applying the
discretionary policy of declining to reach constitutional questions where an alternative
ground for relief is presented. I submit that, if the court was wholeheartedly committed to
its prudential policy of constitutional question avoidance, an exception to the concurrent
jurisdiction rule of Supreme Court Rule 9.01(b) was unjustified in this case.
The majority attempts to justify its extraordinary exercise of original jurisdiction
by elevating the significance of the State-raised question of the proposed ordinance's
compliance with the procedural requirements of the initiative and referendum statute. But
applying well-settled canons of statutory construction to determine whether an action is
procedurally flawed is something district courts do with regularity. Moreover, unlike
appellate courts, district courts are equipped for, and adept at, receiving evidence and
making factual determinations. In my view, the ability to further develop the facts would
have aided the determination of the compliance question in this case.
25
When this original action was filed, the district court already had a pending
declaratory judgment action. Remanding this original action to be consolidated with the
pending district court case would have been an ordinary, natural course of action to deal
with the State's statutory compliance challenge. Indeed, such a remand might well have
accelerated the case's resolution on statutory compliance grounds. On the other hand, if
the district court determined that it could reach the constitutional question, its decision
was still subject to review by this court.
In short, I view this court's May 13, 2015, order retaining jurisdiction as being
indiscreet, given that one of the claims in the Attorney General's petition sought relief on
procedural grounds for which the district court could have provided adequate relief. I
would acknowledge that indiscretion in this opinion to provide guidance for litigants
involved in future concurrent jurisdiction circumstances.
***
BILES, J., concurring in part and dissenting in part: I concur with the result that
quo warranto is an appropriate remedy that must issue because initiative supporters failed
to comply with K.S.A. 12-3013(a) by not filing both the petition and the proposed
ordinance with the city clerk. There is no escaping that conclusion.
I dissent from the majority's choice to evade the more substantive constitutional
and statutory questions presented by this controversy, i.e., (1) whether the ordinance
impermissibly conflicts with, and is therefore preempted by, uniform state law under the
Home Rule Amendment to the Kansas Constitution, Article 12, § 5(b); and (2) whether
the ordinance is principally administrative in nature and therefore excluded from the
statutory initiative and referendum process under K.S.A. 12-3013(e)(1). Put simply, I
cannot believe we took this case just to tell the parties what they already knew.
26
The exercise of our original jurisdiction under Article 3, Section 3 of the Kansas
Constitution is serious business and pragmatically employed to give government officials
an authoritative interpretation of applicable law on matters of significant public concern.
See State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 53, 687 P.2d
622 (1984). Both the Attorney General and the City of Wichita have compelling interests
in knowing much more than this court is telling them about how this proposed ordinance
squares with our constitution and statutes. Likewise, Wichita voters should know whether
the results of any future efforts on this topic may be carried out by their city officials
through a local ordinance or if they must redeploy to the legislature to pursue a change in
state law. With today's result they are instead left with a judicial version of Blind Man's
Bluff.
Kansans are empowered to petition their government to hold an election for
various purposes. See, e.g., Kan. Const. art. 4, § 3 (recall of elected officials); Kan.
Const. art. 12, § 5 (protests against certain taxes, bonds, charter resolutions, and
ordinances); K.S.A. 12-3013 (initiative and referendum ordinances for cities). In this
case, more than 20,000 citizens in Wichita voted to reduce the criminal penalty for first-
offense possession of marijuana and related paraphernalia, within certain parameters, and
to change the classification of that offense from a misdemeanor to an infraction. The
route they hoped might achieve this result was by way of the municipal initiative and
referendum procedures set out in state law.
The majority's decision to sidestep the questions regarding the ordinance's
constitutionality and whether its subject matter is appropriate for the process employed to
adopt it is a temporary retreat from controversy. The majority's rationale is that it does
not have to answer these questions, so it will not. But we already crossed the Rubicon
when we retained jurisdiction instead of leaving the issues to be litigated in district court.
27
We did so because these substantive issues presented matters of sufficient public concern.
See Supreme Court Rule 9.01(b) (2015 Kan. Ct. R. Annot. 88) ("An appellate court
ordinarily will not exercise original jurisdiction if adequate relief appears to be available
in a district court."); see also State ex rel. Stephan, 236 Kan. at 53 ("innumerable lawsuits
involving the issue here could be avoided if this court will take jurisdiction of this
controversy and determine the issue at this time); State, ex rel., v. City of Topeka, 175
Kan. 488, 264 P.2d 901 (1953) (quo warranto action challenging annexation ordinance);
State v. Leavenworth, 75 Kan. 787, 791, 90 P. 237 (1907) ("The law specifically
authorizes the use of quo warranto to restrain municipalities from usurping power and to
hold them within the bounds of lawful authority."); State, ex rel., v. City of Topeka, 31
Kan. 452, 454, 2 P. 593 (1884) ("[W]henever a municipal corporation usurps any power
which might be conferred upon it by the sovereign power of the state, but which has not
been so conferred, such corporation may be ousted from the exercise of such power by a
civil action in the nature of quo warranto in the supreme court.").
With the case now fully briefed and argued, how can this court say it is giving an
authoritative interpretation of applicable law on matters of significant public concern if
we leave Wichita voters, city officials, and the Attorney General to guess whether further
efforts under the initiative and referendum statute are legal? These citizens and public
officials deserved prompt and final determinations from the highest court in this state
instead of being left to wonder what happens if they do it all over again.
As support for not deciding the constitutional question, the majority recounts the
maxim that appellate courts generally will avoid making unnecessary constitutional
decisions. Slip op. at 12. In doing so, it cites two prior decisions from this court in quo
warranto proceedings: Wilson v. Sebelius, 276 Kan. 87, 72 P.3d 553 (2003) and Rogers
v. Shanahan, 221 Kan. 221, 565 P.2d 1384 (1976). But neither case is analogous because
in both a decision resting on nonconstitutional grounds put a final end to the dispute.
28
With the present case, the underlying actual controversies remain alive and well for
another day. In this context, a procedural decision on the filing requirements does not
eliminate the need to decide the constitutional question as the majority claims.
Addressing the substantive arguments already presented would give the authoritative
determination the parties require to perform their official obligations.
For these reasons, I concur in part and dissent in part.
29