Judges: Steve Six, Attorney General
Filed Date: 2/11/2009
Status: Precedential
Modified Date: 7/5/2016
Jeff Barnes, Chair Kansas Home Inspectors Registration Board 610 Rivera Mulvane, Kansas 67110
Dear Mr. Barnes:
As chair of the Kansas Home Inspectors Registration Board (the Board), you pose several questions that pertain to the recently enacted Kansas Home Inspectors Professional Competence and Financial Responsibility Act.1
Your question, however, relates to when K.S.A. 2008 Supp.
The Act was effective on July 1, 2008. However, there will be no registered home inspectors until July 1, 2009. Therefore, the subsections requiring registered home inspectors to conduct inspections in accordance with the "reasonably prudent home inspector" standard of care and providing pre-inspection notification do not apply until the individual is registered. However, the provisions relating to liability disclaimers and limitations became effective on July 1, 2008 and, thus, apply to all home inspectors regardless of registration status. The 12-month statute of limitation also applies to all home inspections regardless of registration status.
"The process of receiving state approval for rules and regulation and the many other endeavors of the Board is very lengthy. The Board is trying very hard to insure that this process is finalized prior to the July 1, 2009 deadline, however if we are not able to meet this date, what are the consequences for inspectors and the industry if we fail to finish in time?"
K.S.A. 2008 Supp.
"Submit proof of membership in good standing in one or more nationally recognized society, association or organization that provides for membership of individuals engaged in home inspections as recognized by the board."9
Your inquiry regarding the constitutionality of this requirement triggers an analysis under Article
"The legislative power of this state shall be vested in a house of representatives and senate."
"Article 2, § 1 expresses the fundamental concept that we are to be governed by our duly elected representatives. It is the foundation upon which our democratic form of government is built."10 This concept has given rise to the nondelegation doctrine.
As one law journal author explained:
"Thus, reasoning in support of the nondelegation doctrine is straightforward. Our democratic form of government permits us to elect our representatives. If we do not approve of the decisions they make, we can vote for someone else at the next election who more closely represents our views. Private groups, on the other hand, are insulated from the democratic process because they are neither elected nor appointed by someone who is elected."11
As early as 1919, the Kansas Supreme Court expressed the nondelegation doctrine thus:
"[I]t is only necessary to recur to the most simple and elementary principles of civil government. In our commonwealth the power to make, amend, alter, and repeal the laws is vested in the Legislature. That body may not abdicate its functions nor delegate its powers to any other body, however learned, wise, and far-sighted the latter may be. This principle of our Constitution and of our public policy is fundamental."12
In State v. Crawford, 13 the issue concerned a statute that required the installation of electric wiring be in accordance with the National Electrical Code promulgated by the National Fire Protective Association, which the Court referred to as an "unofficial organization of private persons."14 The Court found the statute to be an unlawful delegation of legislative power and therefore unconstitutional in violation of Article 2, § 1.
In a more recent case, the Court again addressed the principles of unlawful delegation, this time in the context of a pharmacy statute that required every applicant to be a graduate of a college accredited by the American Council on Pharmaceutical Education [ACOPE], saying Article 2, § 1 prevented "usurpation of legislative authority by other departments of government as well as by a nongovernmental agency of a private individual."15 Further, the Court said:
"[A] strict rule is applied when the delegation of authority to some outside, nongovernmental agency is attempted. The legislative power of this state is vested in the legislature and the legislature is prohibited from delegating legislative powers to nongovernmental associations or groups."16
The court found that the statute had the effect of delegating to ACOPE through its accreditation process the standards of education required before registration was permitted. The statute thus gave full control and ultimate authority to a private, nonprofit association regarding a qualification to become a registered pharmacist and was therefore "constitutionally impermissible."17
With these constitutional holdings in mind, the issue is whether the registration requirement of being a member of a home inspectors professional association, society or organization impermissibly delegates ultimate authority to a nongovernmental entity? Under this provision of the statute, a person cannot become registered unless the person is a member, and membership criteria is entirely within the authority of such association, society or organization. Further, membership criteria may be changed sporadically at will by an association, society or organization, even causing the criteria to be much more rigorous than otherwise required by law; thus a registration applicant could be precluded from becoming a member and consequently from becoming registered. In such event, ultimate authority would rest with a nongovernmental entity rather than with the Board. Even though the statute gives the Board authority to "recognize" an association, society or organization, the Board has no authority over membership criteria. Accordingly, K.S.A. 2008 Supp.
Sincerely,
Steve Six Attorney General
Camille Nohe Assistant Attorney General
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