375 P.3d 1007
Kan.2016Background
- District Magistrate Judge Tommy B. Webb announced retirement effective February 19, 2016; the clerk gave statutory notice to the governor on February 5, 2016.
- K.S.A. 2015 Supp. 25-312a requires gubernatorial appointments to be made "within 90 days following receipt of notice from the clerk of the supreme court."
- Governor solicited applications but declined to appoint within 90 days, stating he would defer to the August 2, 2016 primary election results for the partisan seat.
- Chief Judge Ambrosier and two district judges filed an original mandamus petition in the Kansas Supreme Court on June 15, 2016 seeking an order compelling an immediate interim appointment and attorney fees.
- Governor argued the 90-day requirement is directory (not mandatory), his appointment duty is discretionary, and mandamus cannot compel discretionary acts; court limited decision to whether the statute is directory or mandatory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statutory 90-day appointment requirement (use of "shall") is mandatory or directory | "Shall" creates a mandatory duty; governor must appoint within 90 days | "Shall" is directory as to timing; governor has discretion to delay appointment | The court held "shall" is directory under Raschke factors; timing is discretionary |
| Whether mandamus can compel the governor to appoint now | Governor has a ministerial duty subject to mandamus enforcement | Appointment timing is discretionary; mandamus may not control discretion | Because the duty is discretionary, mandamus relief is unavailable; petition denied |
Key Cases Cited
- State v. Raschke, 289 Kan. 911 (Kan. 2009) (establishes four-factor test to decide whether "shall" is directory or mandatory)
- Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862 (Kan. 1974) (mandamus cannot be used to control discretion)
- Kansas Bar Ass'n v. Judges of the Third Judicial Dist., 270 Kan. 489 (Kan. 2000) (limits on mandamus and use for guidance of public officials)
- Martin v. Ingham, 38 Kan. 641 (Kan. 1888) (distinction between ministerial and discretionary acts for mandamus)
- Hooper v. McNaughton, 113 Kan. 405 (Kan. 1923) (consequence of noncompliance distinguishes mandatory from directory provisions)