BRADLEY E. AMBROSIER, CHIEF JUDGE, KANSAS 26TH JUDICIAL DISTRICT; LINDA P. GILMORE, DISTRICT JUDGE; AND CLINTON B. PETERSON, DISTRICT JUDGE, Petitioners, v. SAM BROWNBACK, GOVERNOR OF THE STATE OF KANSAS, Respondent.
No. 115,982
SUPREME COURT OF KANSAS
July 29, 2016
375 P.3d 1007 | 304 Kan. 907
(375 P.3d 1007)
Opinion filed July 29, 2016.
Pedro L. Irigonegaray and Elizabeth R. Herbert, of Irigonegaray & Associates, of Topeka, were on the petition for petitioners.
Brant M. Laue, of the office of the Governor, was on the response for respondent.
BEIER, J.: This original mandamus action brought by the chief judge and two district court judges of the 26th Judicial District of Kansas against Governor Sam Brownback asks this court to compel the governor to appoint an interim district magistrate judge immediately under the authority of
We hold that a 90-day time limit set out in the statute is directory rather than mandatory under our precedent. This means that the timing of the governor‘s appointment is discretionary rather than ministerial. Mandamus cannot be invoked to compel a discretionary act. The governor may therefore, consistent with his stated intention, wait for the result of the primary election on August 2, 2016, before he appoints the magistrate judge sought by petitioners.
FACTUAL AND PROCEDURAL BACKGROUND
District Magistrate Judge Tommy B. Webb was one of five magistrates in the 26th Judicial District until his retirement on Febru-ary 19, 2016. The governor received statutorily required notice of Judge Webb‘s planned departure from the bench on February 5, 2016. See
The governor informed Chief Judge Bradley E. Ambrosier that day that the governor was accepting applications to fill the vacancy and that an interim magistrate judge would be appointed within the 90-day period prescribed in
After receiving applications, the governor wrote a letter to the applicants dated May 25, 2016, i.e., after expiration of the 90 days. The letter stated:
“This is to inform you that I have decided not to make an appointment to the position at this time. Instead, I will defer to the voters of Haskell County, who will have the opportunity to vote on the position in the August 2nd primary election.
“The filing deadline to participate in the election for this position is June 1.”
Chief Judge Ambrosier, District Judge Linda P. Gilmore, and District Judge Clinton B. Peterson filed this petition for writ of mandamus on June 15, 2016. At the time, four Republican candidates had filed for election to the vacant magistrate judge position. Those candidates will be on the ballot in the primary election on August 2.
The petition specifically seeks a writ requiring the governor to “immediately appoint an interim district magistrate judge for Haskell County.” Petitioners allege the governor “has failed, and in fact refused, to appoint a successor district magistrate judge, in violation of [his] duty” under
This court ordered the governor to respond to the petition, which he did on July 11, 2016. The governor advances four arguments on the merits: (1) the 90-day time limit is directory rather than mandatory; (2) his general appointment duty is discretionary rather than ministerial; (3) the relief sought by petitioners would violate the separation of powers; and (4) dismissal is appropriate under the doctrine of constitutional avoidance.
DISCUSSION
Because, as detailed below, we decide this case in the governor‘s favor on the basis of his first argument, we need not reach, and express no opinion on the validity of, his remaining arguments. Petitioners’ request for attorney fees is rendered moot, and we will not address it.
Before turning to the merits of the governor‘s first argument, we observe that the parties do not appear to contest the advisability of this court‘s exercise of discretionary concurrent jurisdiction in this case or the petitioners’ standing to bring this action. Given this lack of controversy, we touch upon these two preliminary considerations only briefly. See Peterson v. Ferrell, 302 Kan. 99, 102-03, 349 P.3d 1269 (2015) (subject matter jurisdiction, including component of standing, may be raised at any time, on court‘s own initiative).
Both of petitioners’ points are well taken. We have previously considered judicial economy, the need for speedy adjudication of an issue, and avoidance of needless appeals when evaluating whether to exercise discretionary, concurrent jurisdiction over an original action. See State ex rel. Stephan v. Kansas House of Representa-tives, 236 Kan. 45, 53, 687 P.2d 622 (1984) (“Without question, if this court declines to exercise jurisdiction in this action, it will be faced with the identical issue in a subsequent appeal from an action before the district court.“); see also Long v. Board of Wyandotte County Comm‘rs, 254 Kan. 207, 212, 864 P.2d 724 (1993) (“It is only where an issue of law affects public officials, presents an issue of great public importance and significant state interest, and requires a speedy adjudication that mandamus is an appropriate and proper means to decide the issue.“); State, ex rel., v. State Highway Comm., 132 Kan. 327, 334-35, 295 P. 986 (1931) (“The use of mandamus to secure a speedy adjudication of questions of law for the guidance of state officers and official boards in the discharge of their duties is common in this state.“). In addition, this case will define a legislatively imposed duty of the governor, a constitutional officer and the leader of the executive branch of state government. The governor‘s timely performance of the duty at issue, as petitioners emphasize, affects the function, fairness, and efficiency of the coequal judicial branch in its service to Kansas citizens. This case thus presents an important public question of statewide importance appropriate for this court‘s attention in the first instance. See State ex rel. Stephan v. Finney, 251 Kan. 559, 568, 836 P.2d 1169 (1992) (interpretation of governor‘s constitutional authority appropriate for original action filed in Supreme Court); see also Manhattan Bldgs., 231 Kan. 20, Syl. ¶ 4 (mandamus “proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business“).
Turning to standing, this court has allowed original actions in mandamus when the petitioner demonstrates a need “`to secure a speedy adjudication of questions of law for the guidance of state officers and official boards in the discharge of their duties.‘” Kansas Bar Ass‘n v. Judges of the Third Judicial Dist., 270 Kan. 489, 498, 14 P.3d 1154 (2000). And the court has determined such guidance questions when the action was brought by state or political actors other than the attorney general on behalf of the State. See Board of Sedgwick County Comm‘rs v. Noone, 235 Kan. 777, 779-80, 682 P.2d 1303 (1984) (action in mandamus against district court judge brought by board of county commissioners to secure remittance of fines appropriate vehicle for the guidance of public officials); see also Wilson v. Sebelius, 276 Kan. 87, 88, 90-91, 72 P.3d 553 (2003) (action in mandamus against governor brought by Democratic Party of Shawnee County challenging constitutionality of statutory scheme decided in original action). The petitioners have standing to bring this action.
The governor‘s first argument requires us to perform statutory interpretation or construction, which raises a question of law. State v. Jolly, 301 Kan. 313, 320, 342 P.3d 935 (2015). We routinely recite that our initial task is statutory interpretation, as long as the language used by the legislature is plain and unambiguous. See State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). If the language is less than clear or is ambiguous, we move to statutory construction and use the canons of construction and legislative history and other background considerations to divine the legislature‘s intent. See 291 Kan. at 216.
The statute at issue in this case,
We have previously recognized that the legislature‘s use of the word “shall” can have different meanings in different provisions. Because the word‘s meaning is not plain, statutory construction rather than statutory interpretation is necessary.
Our 2009 decision in State v. Raschke, 289 Kan. 911, 914-21, 219 P.3d 481 (2009), extensively reviewed the relevant historical caselaw on the issue and distilled a four-factor test to be used to determine whether a “shall” in a statute should be understood as directory or mandatory. Courts should consider “(1) legislative context and history; (2) substantive effect on a party‘s rights versus merely form or procedural effect; (3) the existence or nonexistence of consequences for noncompliance; and (4) the subject matter of the statutory provisions, e.g., elections or notice on charges for driving under the influence.” 289 Kan. at 921.
The first Raschke factor, legislative context and history, cuts convincingly in favor of the governor in this case.
The 90-day time limit was added to the statute by way of a 2014 set of amendments, the only amendments since 1987. See L. 2014, ch. 82, sec. 25. Earlier language had provided for a 60-day time limit, but it began to run at the time the vacancy occurred rather than at the time the appellate clerk provided notice to the governor. The 2014 amendments added 30 days and started the clock at the notice. They also provided that the clerk had up to 120 days after a vacancy occurred to provide the notice in the first place. See L. 2014, ch. 82, sec. 25. In other words, the legislature decided to substantially lengthen the potential time a judicial position such as the one before us today could remain open. Even if the statutory time limits are met, a vacancy can go unfilled for the 4 months until the clerk‘s notice plus the 3 months of the governor‘s process. This total of 7 months contrasts dramatically with the total of 2 months post-vacancy that the statute contemplated before the 2014 amendments. In short, the legislative context indicates less, rather than more, urgency.
The governor‘s response makes another cogent point about legislative context and history by comparing
The judicial position at issue in this case is subject to partisan election. About half of the district judges and district magistrate judges in Kansas’ 31 judicial districts obtain their seats by such a selection method. The other half arrive at the bench through a nonpartisan district nominating commission process. In the nonpartisan districts, for district magistrate judge positions, the commission vets the applicants and makes the appointment, see
The governor‘s comparison of the two statutes accurately observes that both contain time limits for the governor‘s action on appointments. But only
The legislature‘s creation of the backup plan for gubernatorial appointments in the
On the second Raschke factor, it does not appear that
On the third factor—whether the statute contemplates consequences for noncompliance with the 90-day time limit—again, the factor cuts in favor of the governor‘s characterization of the word “shall” as directory only. Even petitioners’ prayer for relief implicitly acknowledges that at least the most serious consequence of tardiness, i.e., invalidation of any eventual appointment, is not intended by the legislature. They seek an immediate appointment, meaning they do not believe that the governor‘s reluctance to appoint on time should deprive him of the power to appoint at all. Indeed, the legislature appears to have provided for no adverse consequences for failure to meet the 90-day time limit. See Raschke, 289 Kan. at 917-18 (citing and discussing, inter alia, Hooper v. McNaughton, 113 Kan. 405, 407, 214 P. 613 [1923] [distinction between directory, mandatory lies in consequence of nonobservance; act done in disobedience of mandatory provision void; directory provision should be obeyed, but act done in disobedience may still be valid]).
The fourth Raschke factor focuses on subject matter of the stat-ute at issue. It recognized that statutes dealing with elections and DUI notices tended to be held to be mandatory while statutes “governing order and timing of procedures are more likely to be determined to be directory only.” Raschke, 289 Kan. at 918-20 (collecting numerous cases). The subject matter before us here deals explicitly with timing of the governor‘s appointment, not with his substantive power. This factor also favors the governor‘s argument that the “shall” in
Considering all of the four Raschke factors, we hold that the word “shall” in
CONCLUSION
For all of the reasons discussed above, the petition for writ of mandamus is denied.
BILES, J., and STEGALL, J., not participating.
MICHAEL J. MALONE, Senior Judge, assigned
DAVID L. STUTZMAN, Senior Judge, assigned