Judges: Robert T. Stephan, Attorney General
Filed Date: 8/24/1994
Status: Precedential
Modified Date: 7/5/2016
Gary E. Rebenstorf Director of Law and City Attorney City Hall — Thirteenth Floor 455 North Main Street Wichita, Kansas 67202-1635
Dear Mr. Rebenstorf:
As attorney for the city of Wichita, you request our opinion regarding the authority of a city to call and conduct an advisory election. Specifically, you ask the following:
"1. May the City conduct its advisory election at the same time and in the same places as the general election in November (1994)?
"2. May the City conduct its advisory election at the same time and in the same places as City primary or general elections (1995)?
"3. May the County Election Commissioner conduct the City advisory election for the City?
"4. May the County Election Commission's conduct of the advisory election include the submission of a special question ballot along with other election issues submitted at the general or City elections?
"5. If it is determined that the Election Commissioner cannot conduct a city advisory election at the same time as regular elections, may the City contract with the County Election Commissioner to use the administrative skills, facilities, and resources of the County Election Office to conduct a city advisory election at some other time or by mail ballot?"
An advisory election is an election at which the views of a particular electorate are solicited through the balloting process with respect to a specific issue or question, and the expression of such views has no binding effect upon the governing body soliciting such opinion. Blevinsv. Board of Douglas County Commissioners,
In Attorney General Opinion No. 83-177, the authority of a county election officer to conduct an advisory election was addressed:
"While the county election officer is empowered to conduct city elections [K.S.A.
25-2104 (b), 25-2110, 25-2810], such officer's authority is limited to the supervision of only those elections authorized by statute, and no others. [Citation omitted.] Accordingly, if a city desires to hold an advisory election, it cannot rely upon the county election officer to supervise the proceedings, for such action would be in excess of that officer's authority. Our reasoning and conclusions herein are consistent with Kansas Attorney General Opinion No. 79-44 regarding the home rule powers of counties to conduct advisory elections." (Emphasis added.)
In 1985, the Kansas legislature amended K.S.A.
"Disorderly election conduct is willfully:
. . . .
"(e) engaging in any of the following activities within 250 feet from the entrance of a polling place during the hours the polls are open on election day:
"(1) solicitation of contributions; or
"(2) conduct of advisory elections other than those specifically authorized by law, including the exercise of home rule power, to be conducted by a county election officer." (Emphasis added.)
The interpretation of a statute is a matter of law and it is the function of the court to interpret the statute to give it the effect intended by the legislature. Todd v. Kelly,
Disorderly election conduct occurs in those instances in which an advisory election, other than one authorized by statute or home rule, is conducted within 250 feet of the entrance of a polling place during the hours the polls are open on election day. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Martindale v. Tenny,
It is presumed the legislature was aware that prior to enactment of L. 1985, ch. 118, sec. 11, a city had the authority to call an advisory election, but the advisory election could not be conducted by the county election officer. See Attorney General Opinion No. 83-177. Through enactment of L. 1985, ch. 118, sec. 11, the legislature intended to modify such prohibition, and permit the county election officer to conduct advisory elections. However, K.S.A.
While polling places for an advisory election may be within 250 feet of polling places for a primary or general election in those instances in which the county election officer conducts the advisory election, separate polling places for the advisory election must be maintained. "No ballots other than those provided and printed in accordance with law shall be delivered to a voter, deposited in a ballot box or counted." K.S.A.
Pursuant to K.S.A.
Very truly yours,
ROBERT T. STEPHAN Attorney General of Kansas
Richard D. Smith Assistant Attorney General
RTS:JLM:RDS:jm