State Ex Rel. Stephan v. Kansas House of Representatives

56,880 No. Stephan, Petitioner, T.

Stаte ex rel. Robert v. Kansas House of Senate, Representatives, Carlin, Governor Kansas John Kansas, Respondents. State of (687 622) P.2d 29,

Opinion August filed 1984. cause, Bieker, Robert attorney general, argued Rodney T. the assistant J. Biles, attorney general Stephan, attorney and Dan general, were with assistant petitioner. him the for respondent Griggs, Topeka, argued the the H. cause for Governor Arthur Carlin. John Coldsnow, Counsel, argued Legislative A. the cause for the Robert Kansas Representatives respondents and Kansas Senate. Kansas House by the court was delivered opinion The quo original in warranto This an Schroeder, C.J.: by attorney state on relation of the brought mandamus the respondents Representa- general against the Kansas House Governor, Carlin, tives, seeking Kansas Senate Kansas John constitutionality K.S.A. Supp. 1983 a determination 77-426(c) (d). provides legislature may This statute modify regulations by administrative rules and adopt, or revoke passed by legislature pres- without concurrent resolutions challenged being It is as governor. entment violative powers by authorizing constitutional doctrine usurp to administer legislature the executive argued procedures also the statute violates enforce laws. It is 14, 2, §§ in art. 20 of the Kansas concern- mandated Constitution proper laws. Concurrent ing the enactment of resolutions were legislature pursuant during to this statute adopted brought and 1984 sessions. This action is 1983 statute, validity challenge also to only to test the but legislature pursuant governor to the statute. The actions of necessary that respondent named a the stated reason it is was directing governor as to for this court to issue order govern- law to executed the executive branch proper ment. in its memorandum filed this court does attorney general of this case addressed

not brief merits Therefore, quo we shall warranto mandamus action. by the the issues raised its Motion to first address Dismiss, response. filed as its

47 immunity sovereign contends the doctrine of lawsuit, state, stating bars this the familiar rule being subjected sovereign power, cannot be to suit in its own courts except given See, legislature. where consent has been e.g., Pipe Sinclair Line Co. v. State Commission Revenue & Taxation, (1957); Perry Kan. 181 311 P.2d 342 v. City of Wichita, 264, Syl. 2,¶ Kan. (1953); 174 255 P.2d 667 Linderholm 224, State, Syl. 1,¶ (1937), 69 P.2d 689 cert. denied (1939). U.S. University, 630 Brown Wichita State Cf., P.2d Kan. cert. denied 429 U.S. 806 Govern immunity, created, originally judicially mental abrogated Kittle, (1969), this court in Carroll v. Kan. P.2d 21 agencies situations where the state engaged pro are prietary Legislature quickly activities. The passed Kansas K.S.A. seq. (Weeks), reimposing governmental 46-901 et immunity in repealеd Kansas. This was in 1979 when the Kansas Tort Claims Act, Supp. seq., enacted, K.S.A. 1983 et 75-6101 subjects governmental liability damages entities to caused for negligence employees acting the scope within the of their employment. 75-6103(c)- However, K.S.A. 1983 Supp. K.S.A. Supp. 75-6104(a) specifically 1983 exempts government the from liability damages resulting “legislative functions, for from in to, cluding, adoption but not limited adopt any or failure to statute, regulation, ordinance or resolution.” difficulty

The the legislature’s argument with is that the cases liability money and authorities cited relate damages by private actions individuals other against govern- or entities entity. provide support mental These cases proposition no for the original seeking declaratory that an relief not be brought question authority on behalf the state legis- lative acts and the agencies of administrative to act regulations propounded by under the rules and legislation. such officials, recognized Courts have state distinguished as from the itself, state are not immune from actions restrain them from enforce, enforcing, attempting or state laws which violate the taking or constitution from unconstitutional action under color of law, seeking money damages state actions not therefore are Press, Kansas, See v. Supp. barred. Grove Inc. State 304 F. 383, (D. 1969). Moreover, 388 Kan. the mere existence of other quo actions heard this nature of warranto or 48 judicial branches the executive and against officers of

mandamus immunity protect gov- sovereign does not makes it obvious equitable extraordinary from actions for entities ernmental Carlin, Stephan v. 665, ex Kan. 630 e.g., State rel. See, 229 relief. Bennett, rel. P.2d State ex (1981); Kan. P.2d 709 Bennett, ex rel. v. (1977); 219 Kan. 547 P.2d 786 State Schroeder, Sinclair v. (1976); 225 Kan. 586 P.2d process upon service of The also contends and the President of the Representatives Speaker of House subject legislative body as whole to insufficient Senate is jurisdiction The maintains: court. entity Representatives Senate which can as the House of “There is no such upon only process through one with substituted service member be served . . . thereof even albeit an officer. petition proceed against only in which the could “The conceivable manner process] Legislature [and . . all the . would be to name serve Kansas respondents individually in this action.” thereof as members hand, is a argues, on other petitioner entity which has an existence legal created the constitution legislative the individuals who hold separate apart from body legislature. legislative comprise office body may process served with similar to Office Gover- subject Supreme Court. If the branch is not nor or the process judicial branch has no means with which to service of branch, and the check abuses built into the constitution of checks and balances mechanism supported by destroyed. argument This declara- would be Association, Brewing State 90 Pac. tion (1907): plenary power principle is is better established than that “No of the common law jurisdiction protect preserve their that the in courts to so exercise vested all may granted . . . .” be made effectual functions that case the court held: In quo warranto, jurisdiction proceedings original has in in man- “This court corpus only. jurisdiction injunctions original issue damus and habeas It has no preserve protect, appoint its But in render effectual receivers. order or may property jurisdiction original the and transfer of the court restrain use foreign brewing property employed

appoint owned and a receiver state, pending proceedings conducting company unlawfully in its business this 184, Syl. quo warranto to oust it.” 76 Kan. in state the government the of this legislative branch of and functions of that are addressed in art. 2 of powers branch the say lеgislative legal Constitution. To the Kansas branch not a entity process saying which can be served with is tantamount may brought legislature the never be this court in an before original power. challenging alleged action its abuse of As the out, correctly effectively points destroys this petitioner the au- thority power by of this court to check abuses of the other two government. legislature actions branches Prior the indicate legislature recognized entity may the itself has it is a legal which litigation participate in the before courts of state. K.S.A. legislative 46-1222 establishes the office of powers counsel. The legislative 46-1224, and duties of counsel are set in K.S.A. forth provides, part: in legislative coordinating council, legislative “As the directed the counsel represent legislature, thereof, any shall the house or either in cause or matter. In quo legislative the cases warranto mandamus counsel shall have the same standing any county attorney in all courts this state as or district attorney county supreme attorney has in his or her in the or court and as the any session, general legislature has in court. When the is in either house thereof resolution, may both houses concurrent or resolution the authorize legislative coordinating legislativе bring council to direct the counsel or participate any by representing legislature in cause or action the or either house legislative any coordinating thereof or the council court of this state or session, legislative coordinating United States. not in When legislative bring participate any council direct counsel cause by representing legislative or either house thereof or the coordinating any council this state or of the United States in accord- ance with of said directions council.” 46-1201(c), As established in K.S.A. legislative coordinating comprised Senate, council of the President of the Speaker Representatives, Speaker House of Pro Tem Representatives, Majority Senate, House of Leader Majority Representatives, Minority Leader House Senate, Minority Leader of the and the Leader of the House Representatives. provides K.S.A. 46-1202 coordi- nating represent council shall legisla- when the prior ture session. cases before this court counsel, representative on of the legislature behalf or its council, legislative coordinating party intervened as a or as See, e.g., Buildings, Hurley, amicus curiae. Manhattan Inc. v. (1982); Bennett, Kan. P.2d State ex rel. v. 285;

12; Bennett, Kan. State ex rel. State Brown Wichita Kan. 2. University, 219 by which is created the constitution government of

As a branch participates its own counsel intercedes represented state, only the of this it stands to reason courts litigation before comprises legal entity which is body as a a legislature the that this original proceeding before process service of in an subject to its actions. challenging court may subjected jurisdic- it be to the legislature contends

The process upon only of each its this service of tion of §2, the Kansas Constitution no art. of members. Under process may during served with the the member of upon made in case process Service was this legislative session. of Hayden the Mike and President of the Senate Speaker House of 2,May when this case was filed Doyen on or about Ross compliance Appellate Courts. In with art. with the Clerk the § made after the process also on service June adjournment legislature. sine die the process object of service of is to principal purpose The or against him so notify proceedings the that he a defendant of claim; it prepare charge himself to properly answer opportunity appear to before means which he afforded gives the court heard the court. It is notice and be 2d, § jurisdiсtion Am. 2. proceed. See 62 Process Jur. opportu- guaranty process means “The constitutional due law notice competent jurisdic- nity tribunal vested with be heard and to defend before cause; subject it is therefore to the exercise of tion matter of essential general ap- voluntary jurisdiction, where the defendant does not enter that pearance process, process giving notice otherwise waive service of issue 2d, § rights Am. 3. whose will be affected.” 62 Process those interests Jur. upon presiding the two process officers of Service concept purpose satisfies houses of requirements process. legisla- process and due meets officers, provided body, through presiding its notice of tive thereby against this court and is original proceedings before respond opportunity prepare defense afforded attorney require general, To in an petitioner’s claims. branch, personal to execute original against upon would process each member of service of unnecessary purpose and onerous burden. constitute accomplished upon presiding service object process is legisla- notice each of the members further officers and unnecessarily duplicative. would be ture legislature quo The contends the remedies of mandamus and inappropriate legislature in this warranto are matter. The first general principle the authority cites authorities for the of the discretionary legislature act in its subject to function is not to judiciary. the This is such interference true whether action legislature disregard clearly the is in its imposed of constitu- duty See, tional the enactment an or is of unconstitutional law. City e.g., Alpers County Francisco, San 32 F. of (N.D. 1887); 2d, §§ 16 Am. Cal. Constitutional Law Jur. However, out, petitioner points 316. as the this action does not legislature the preclude exercising seek to from its discretion to law, an stop enact unconstitutional but rather seeks legis- to the acting lature from under the of an unconstitutional requested relief require enactment. The not therefore does the legislature’s court to interfere with the constitutional to function, its preclude exercise but legislature to the an executive function. The exercising from petitioner argues that legislature empowered because the the “agency” to act under 77-426, this action is no different an against than action agency body administrative or other law seeking enforcement prevent the enforcement an invalid enactment. argues

The the quo remedies of mandamus proper persons are the warranto not because are who affected legislature’s plain actions under 77-426 a adequate have remedy challenge of law constitutionality available these actions. The attention court directed seq., of K.S.A. 60-1701 et provisions and K.S.A. 77-434. K.S.A. 60-1701 authorizes courts of record in this state issue declara- tory judgments controversy. in cases actual K.S.A. 77-434 provides declaratory judgment may brought be purpose court determining district validity, con- or application struction regulations. of administrative rules and (now superseded by provisions K.S.A. 77-434 contained in L. 338) provides: ch. validity, application any regulation may “The construction or rule and be declaratory judgment' an action for determined thereon addressed county plaintiff place principal in which the district court resides or has a business, county, alleged or in district Shawnee when it that the regulation application impairs rule and or threatened interferes with or or impair legal interest, rights, privileges with threatens to interfere or or declaratory party agency to the action. The plaintiff. shall made The requested agency plaintiff has first

judgment until the be rendered questiоn. validity regulation shall The court pass upon the rule and regulation that it constitutional or invalid if it finds violates the rule declare statutory authority agency, statutory provisions, exceeds procedures.” statutory rule-making compliance adopted without substantial provisions appro- that under these more argues parties the real granted will be because effective relief priate and actually interest, i.e., affected the enforce- persons those adopted by regulations the rules and ment of 77-426, the courts. will be before jurisdiction pro- granted original Supreme Court 3, § by quo art. mandamus and warranto ceedings mandamus as “a K.S.A. 60-801 defines Constitution. Kansas perform speci- a person . . . compel some proceeding to office, trust, the or official duty, duty results from which fied directed, the or from party the to whom order station of appropriate held mandamus is an law.” It been operation of compelling public a purpose designed for proceeding by clearly duty, imposed law and a defined one perform officer Buildings, Manhattan involving the exercise of discretion. 20, Syl. prior ¶ Hurley, 2. Numerous decisions v. 231 Kan. Inc. remedy es- proper mandamus is a where the recognized have purpose proceeding is to obtain authoritative sential public guidance law for the officials interpretation business, notwithstanding public their administration remedy 20, adequate at law. 231 Kan. exists an fact that there also 4; Corporation McHenry, v. 200 Kan. Syl. ¶ Oil Mobil petition (1968), cited therein. Where a and cases 436 P.2d public importance presents great an issue mandamus may original jurisdiction in man- concern, exercise its the court Chipman, 232 Kan. question. settle the Berst damus and (1982). P.2d 107 may in this quo brought warranto be court actions in Original unlawfully usurp, into or hold or “any person shall intrude when 60-1202(1). any This court has public office.” K.S.A. exercise proper original in a case an recognized on several occasions procedure question appropriate quo warranto is an action in Stephan v. E.g., State ex rel. constitutionality a statute. 1,¶ Martin, Syl. 641 P.2d 1011 procedure which 77-434 true that K.S.A. establishes It is persons applica- whose interests are affected the threatened regulations tion of rules enacted under 77-426 challenge constitutionality of the statute and obtain deter- application of regulations. mination of the such rules and How- ever, pointed petitioner, as out innumerable lawsuits involving the could issue here be avoided if this will court take jurisdiction controversy this at determine issue petitioner argues agencies time. the various and boards changes regulations affected in these rules and are unsure enforceability legal effect of such rules regula- tions, require Also, guidance of this court. because people numerous are regulations affected these rules and it is argued presents an important public question case should determined at this time rather than in piecemeal litigation question, before district courts. Without if this court action, jurisdiction declines to exercise in this it will be faced with the identical issue a subsequent appeal from an action before district court. quo

Relief the nature of warranto and mandamus is discre- Stephan Carlin, State rel. ex tionary. 229 Kan. at 666. This may properly quo entertain this action in warranto and if it public mandamus decides the issue is of sufficient concern. argues further present ‍‌​‌​​‌‌​‌​​‌​​‌​​‌​‌​​​​​​​​‌‌​‌​​​​‌​‌​‌​‌​‌‌‌‌‍this case does not a case controversy because the state has recognizable suffered no injury. apparent It is from above discussion relating to the propriety purpose quo of actions in warranto and mandamus entirely that this issue brought without merit. This action is interpretation both to obtain an authoritative of the law for the guidance public public of оfficials in their administration question constitutionality legislature’s business and to addition, controversy In presented actions. an actual where it alleged attorney general, people on behalf of of state, that the usurped exceeded — authority of the a proper party executive branch. “The state is — bring indeed proper party this action. The state is or stat integrity of its constitution always where the interested Doane, 440, 435, v. 158 State ex rel. utes is involved.” 919, 939, Chadha, U.S. 77 L.Ed.2d (1916). In INS v. 462 Pac. 38 rejected 2764, argument was (1983), asimilar 317, 103 S.Ct. 2778 constitutionality legislative veto of one-house where challenged.

54 Dismiss ad- thrust in its Motion to primary legislature’s

The legislators suit immunity state from the common-law dresses functions, legitimate legislative performance arising out of §2, 22 Clause in art. Speech or Debate which is embodied have been no cases Although there the Kansas Constitution. clause, the United construing this Kansas courts decided upon in numerous cases to has been called Supreme Court States equivalent applicability of the federal scope and determine I, 6,§ United States Constitution. cl. 1 of the in art. contained 367, 1019, Brandhove, 71 S.Ct. U.S. 95 L.Ed. Tenney 341 enjoy legislators state com- (1951), recognized that it was 783 immunity origin and rationale to that is similar mon-law Speech or Debate under the federal congressmen accorded Union, 446 U.S. Va. v. Consumers Supreme Court Clause. (1980). Supreme 641, 100 S.Ct. 64 L.Ed.2d legislative privilege is in dicta that the state stated Court has also Speech privilege federal with the similar parity aon 169, Johnson, 383 U.S. United States Clause. See Debate (1966); Supreme Va. v. Court 86 S.Ct. 749 L.Ed.2d Tenney Union, The decision in 446 U.S. at 733. Consumers intend the enactment of 42 Congress did not concluding that immunity legisla- abrogate § the common-law 1983 to U.S.C. immunity similarity common-law between was based on tors immunity. by the Clause As stated Speech or Debate and federal Marino, (2nd Distributors, Cir. Ltd. v. 613 F.2d court in Star justifications 1980), origins [state shared “[t]he Speech immunity under the federal or Debate immunity and inappropriate for us to differentiate render would Clause] good reason.” In this state without scope the two [doctrines] immunity legislators state is embodied the common-law presents itself 2, § and no reason our state constitution art. immunity which legislature the same according the state for not Congress. federal protects our immunity arising Speech out of the

The doctrine of Supreme Court was summarized Debate Clause Union, 446 U.S. at 731-32: v. Consumers Supreme Court of Va. Speech already Clause immunizes that the or Debate have decided “We damages. prospective Eastland v. Congressmen relief or suits for either from Fund, purpose U.S. 502-503 United States Servicemen’s legislative performed immunity function be insure that the is to

55 preserve legislative Ibid. To independently of outside interference. without fear ‘legislators engaged sphere independence, have concluded that “in the we Brandhove, legislative activity,” Tenney (1951)], v. legitimate U.S. [341 protected only consequences litigation’s from the results but should be Eastland, v. defending themselves.’ Dombrowski also from the burden of (1967).” U.S. pointed out that no distinction has been The court also made damages prospective actions for and those for or de- between relief, involved, claratory stating: as here action, recognized private elsewhere that ‘a civil “[W]e have whether for an injunction damages, [legislators] or creates a distraction and forces to divert their

time, energy, legislative litigation.’ their tasks and attention from to defend the Fund, [421 U.S.] v. United States Servicemen’s Eastland at 503.” 446 U.S. at 733. Va., Supreme Court declaratory a lawsuit seeking injunctive brought against Virginia Supreme relief was Court portions for the court’s refusal to amend of the State Bar Code indicating provisions the wake of federal cases some of the Code challenged. pro- would be held invalid if It was held pounding Bar Virginia acting the State Code the Court was in a caрacity and therefore the court and its members challenging were immune from suit their refusal amend However, questionable provisions. it was also held the members had provisions additional to enforce the of the code and proceedings against attorneys, to initiate enforcement and for proper that reason the Court and its members were defendants declaratory injunctive relief, just a suit for as other enforce- agencies ment officers and are. 446 U.S. at 736. purpose Speech and function of the or Debate Clause as Fund,

described in Eastland v. United States Servicemen’s 491, 502-03, (1975), U.S. 44 L.Ed.2d 95 S.Ct. 1813 is of particular relevance here:. purpose “The of the Clause to insure that the function the Consti- Congress may performed independently.

tution allocates to “ Speech ‘The immunities Debate Clause were not written into the simply personal private for the Constitution benefit of Members of Con- gress, protect integrity legislative process by insuring but to Brewster, independence legislators.’ United States of individual [408 U.S. [(1972)]. at] 507 system reinforcing In our ‘the clause serves the additional function of deliberately the Founders.’ United States so established Johnson, [(1966)]. [383 at] U.S. Thompson, product English experience. Kilbourn v. “The Clause is a

56 supra, (1881)]; Johnson, 168, at 177-179. Due to that v. United States U.S. [103 ‘prevent the Clause

heritage it that the ‘central role’ of cases make clear our possible accountability by legislators and before the Executive intimidation (1966),’ Johnson, 181 Gravel v. judiciary, 383 U.S. States v. United hostile [(1972)]. States, That role is not the sole function 617 [408 at] U.S. United totally history Clause, however, English the reach of the does not define experience, Rather, interpreted light the American it ‘must be Clause. government. . . .’ scheme of American constitutional in the context that, Brewster, long supra, Thus we have held when at 508. States v. United actions, against provides protection civil as well as criminal applies, the Clause by brought by private against as well as those initiated individuals actions added.) (Emphasis omitted.]” [Citations Branch. the Executive legislative privilege is to Finally, recognized it has also been purpose. Eastland United broadly effectuate read 501; Fund, 421 U.S. at United States States Servicemen’s Johnson, 383 U.S. at 180. absolutely legislators Clause are Speech or Debate

Under the defending upon lawsuits based acts burden of immune from the activity.” sphere legitimate within “the done Fund, at 421 U.S. 503- v. United States Servicemen’s Eastland by stating; this the court defined speech particular determining than or activities other literal “In whether sphere’ ‘legitimate legislative we look to see whether the within the debate fall by place the House оne of its members relation to ‘in a session of activities took U.S., specifi- Thompson, 103 at 204. More it.’ Kilbourn v. the business before cally, are whether the activities we must determine “ processes integral part and communicative ‘an of the deliberative proceedings participate with re- in committee House which Members passage rejection proposed legislation spect to the consideration places respect within the matters which the Constitution to other States, jurisdiction U.S. at 625.” House.’ Gravel v. United of either is the passing of acts and resolutions It has been held that the Thomas, Eslinger v. very legislative process. essence of the therefore, follows, (4th 1973). logically Cir. It F.2d challenging an Legislature is immune from action Kansas (d). 77-426(c) constitutionality Supp. of both K.S.A. Speech im- or Debate petitioner argues the doctrine func- munity application the exercise of an executive has no emphasized that this seeks not legislature. It is tion statute, constitutionality only but also challenge legislature pursuant to the validity taken of the action enact, statute, i.e., purporting to passing of the resolutions argues modify regulations. petitioner or revoke rules and proposition legislature may that the Kansas that the not be sued court, original this in a case the state action before where exclusively has exercised a within branch, the executive threatens constitutional petitioner system argues checks and balances. The also immunity case does not fall under the broad umbrella of con- Speech Clause it is ferred or Debate because the action of body being challenged as a which is rather than legislature. of individual members of the actions This dis- Va., Supreme Court a valid one. In tinction not court Court, Virginia as well as its protected Clause held the members, suit. This further from comment the court that brought against case makes it clear where an action is legislature enacting capacity, as a whole for a law in its official legislature is immune from suit the same as if the lawsuit was against legislators: directed individual “Thus, Virginia Legislature there is little doubt that if the had enacted the State legislature, committees, brought against if its Bar Code and suit had been refusing members indicating to amend the Code the wake of our cases that invalid, respects held Code some would be the defendants in that suit successfully sought grounds legislative could have dismissal on the of absolute added.) immunity.” (Emphasis 446 U.S. at 733-34. question

We come then to the whether the enactment of the passing statute of the concurrent resolutions does not fall sphere legitimate legislative activity, within the as peti- Tenney, “[legislatures may tioner contends. the court noted acquire power by not of course an unwarranted extension of privilege. . . . This hesitated to sustain the private rights Congress acting individuals when found legislative outside its role.” 341 U.S. at 376-77. The court later stated: go beyond determining courts should not the narrow confines of “The that a inquiry may fairly province. within committee’s be deemed To find that a investigation legislative power committee’s has exceeded the bounds of it must usurpation exclusively obvious that there was a of functions vested in the

Judiciary or the Executive.” U.S. at 378. argument by pointing counters to the statuteyis constitutionality presumed; rule that the of a familiar validity; must be in favor ‍‌​‌​​‌‌​‌​​‌​​‌​​‌​‌​​​​​​​​‌‌​‌​​​​‌​‌​‌​‌​‌‌‌‌‍ofbits that all doubts resolved clearly appear statute be stricken it must that the before a Stephan Martin, the constitution. State ex rel. statute violates therefore, 641 P.2d 1020 It is argued, right presume had a the statute was until such time as competent jurisdic- constitutional a court of tion, case, appropriate in an has declared the law to be uncon- stitutional. merely

It is clear that if this case challenged the constitution- ality ground of the statute on the that it violated the doctrine the would have to be dismissed from grounds legislative the suit on the immunity. absolute How- ever, the enactment petitioner rules and argues here regulations pursuant legislative to the statute constitutes usur- pation exclusively vested the executive. If this is function so, this lawsuit would not be barred on basis of immunity Speech or Debate Clause. hesitate, however, precedent

We to establish as at this time the validity attorney of an such as this general on behalf directly against legislature. state Cases in the United Supreme giving States Couit upon sanction to an attack a legis exceeding lative enactment bounds of power, obviously usurpation where there was a of functions vested in judicial government, or executive branches of brought were rights individuals whose were affected unconstitutional part action on the e.g., Tenney v. Brand legislature. See, hove, Chadha, INS v. 367; 341 U.S. 462 U.S. 919. Under these circumstances we sustain motion of the to dismiss against the action it. however, governor, joined

The respondent as a quo Many and mandamus warranto action. state actions on relation of attorney general against governor of the state have been See, e.g., recognized Stephan State ex rel. this court. v. Carlin, 665; Bennett, State v. ex rel. 12; 229 Kan. 222 Kan. State Bennett, ex rel. v. 219 Kan. Accordingly, 285. proceed we determine presented. the merits of the action Mandamus is a proper remedy purpose where the essential proceeding interpretation to obtain an authoritative guid- law for the governor ance of the in his public administration of the business state. argued provisions It is Supp. 77-426, of K.S.A. 1983 modify, reject, allow the or revoke administrative regulations resolution, rules and concurrent constitute

59 usurpation power unlawful of the executive to administer laws, thereby violating enforce constitutional doctrine of separation powers. States,

Like the Constitution of the United the Kansas Consti- express provision tution contains no establishing the doctrine of separation However, of powers. recognized has been that the very system structure of the government three-branch gives Greenlee, rise to the doctrine. State v. 712, 228 Kan. 620 Bennett, (1980); State ex rel. v. P.2d 287; 1132 v. 219 Kan. at Leek Theis, Van (1975); Kan. 539 P.2d 304 v. Sickle Shanahan, 511 P.2d 223 The doctrine separation powers an outstanding feature of the American system. governments, constitutional federal, both state and i.e., branches, are divided legislative, into three executive judicial, given each of powers which is appro- functions priate Thus, dangerous to it. power concentration of is avoided through the checks and balances each government branch of has Shanahan, the other. Van Sickle v. against 439-40; Kan. at State, Bennett, ex v. 287; Greenlee, rel. State v. 219 Kan. at Generally Kan. at 715. speaking, the legislative power is the make, amend, power laws; repeal power the executive power laws; judicial power to enforce the and the is the interpret apply the laws actual controversies. Shanahan, Van v. Sickle 212 Kan. at 440. powers department

The fact that may of one overlap department’s powers another long recognized been a fact. pragmatic, Recent cases have taken a flexible and practical doctrine, approach recognition giving the fact there degree blending be a certain or admixture of powers the three government and that separation powers impos- absolute Greenlee, Theis, 715-16; State Leek v. sible. 228 Kan. at Hurley, Manhattan Buildings, Inc. v. 805-06; Kan. at 231 Kan. at 32. following general principles concerning Greenlee, were State doctrine summarized in Kan. at 716: “(1) presumed A statute is to be constitutional. All doubts must be resolved in down, validity, clearly favor of its a before statute be stricken it must Theis,

appear Leek v. the violates the statute constitution. 217 Kan. 784. “(2) challenged separa- When a statute is the constitutional doctrine of powers, usurpation by department tion of the must search for a court one of the powers department specific presented. of another facts on the and circumstances 785; rel., Fadely, 652, 308 State, Theis, 180 Kan. P.2d 537 ex v. at v. Kan.

Leek (1957). by significant “(3) powers there is interference usurpation exists when A State, rel, Bennett, department. ex v. department operations of another one 219 Kan. 547 P.2d powers usurpation determining exists a should “(4) whether or not exercised; (b) degree being power (a) the of the nature the essential consider another; sought by (e) objective attained by department over one control powers by blending (d) as practical shown legislature; result Bennett, State, rel., period ex v. 219 Kan. 285.” experience of time. over a actual 32. Hurley, v. 231 Kan. at Buildings, Inc. Manhattan See also under 77- procedure established whether determine To doctrine a violation of 426 constitutes we forth above. First look to the the factors set we must consider consistently It has being exercised. been power nature of regulations power adopt rules and held in this state nature, legislative. essentially administrative executive or Co., Conveyor 231 Kan. Midwest See, e.g., Woods therein; (1982), cited State ex rel. and cases P.2d 234 delegated to the Bennett, at 297-98. This say legislature cannot by This not to law. executive branch adopt agency the modify grants statute by delegated law a function regulations. Once authority by executive, may only proper revoke that to the provisions of with the law in accordance of another enactment 2, § state constitution. 14 of our art. by degree of control must seek to determine

Secondly, we procedure Under the over the executive branch. has total and absolute con- 77-426 the established in any regulations rules or reject revoke modify, trol allowing pres- provision is no for There concurrent resolution.. legislature’s approval branch entment the executive agencies involved such, the executive branch actions. As legis- taken over actions whatsoever have no control regard. lature in this objective require us to look at the factors

The third and fourth practical apparent result. Here the and the obtained sought to be actually accomplished the control objective and result regulations admin- of rules and adoption legislature over the participation the exec- the exclusion agencies istrative area. utive branch in this all the facts before us and of these factors

A consideration 77-426(c) (d) that Supp. leads to conclusion K.S.A. 1983 and significant legislative a interference branch with the usurpation executive branch and constitutes an unconstitutional powers. of Several recent federal and state holding decisions legislative oversight similar mechanisms to be unconstitutional support this conclusion. Chadha, U.S. Supreme

In INS Court struck separation powers a of the doctrine of of down as violation a Immigration Nationality and Act provision allowing either Congress to suspension depor- house of veto resolution a attorney granted by tation general. Immigration Service ruled Naturalization Chadha could remain in the United though deportable. States even he was The House vetoed this decision and the I.N.S. issued a final order deportation. petitioned appellate Chadha for review. The court held the passage essentially resolution Act legislative this was purpose because had the and effect altering the legal rights, duties and persons, including relations of attorney general, officials, Chadha, executive branch all legislative outside the branch. 103 S.Ct. at 2784. The the following perti- court made nent comments: implemented “The nature of the decision one-House veto this case legislative lоng experience clumsy, further manifests its character. After with the private consuming procedure, Congress time bill made a deliberate choice to delegate Branch, specifically General, Attorney Executive to the authority deportable country specified to allow aliens to remain in certain disputed delegate authority precisely circumstances. It that this choice to implemented only the kind of decision that can be in accordance with the procedures Disagreement Attorney set I. out Art. with the General’s decision — — is, deportation Congress’ on deport Chadha’s that decision Chadha no original Congress’ delegate Attorney less than choice to the General decision, authority policy that Congress to make involves determinations that implement only way: passage by presentment can one bicameral followed Congress delegation

the President. must abide until delegation legislatively altered or revoked.’’ S.Ct. at 2786. The court legislative concluded that such subject action was express I, § procedures contained in art. passage by majority action: of both houses presentment the President. 103 S.Ct. at 2787. F.E.R.C., Energy, (D.C. Etc. v. Consumer 673 F.2d 425 Cir. 1982), 'd sub Group, nom. Process Gas Consumers et al. v. aff America, Energy al.,

Consumer Council et 463 U.S. 1216 Natural provision veto Gas

(1983), a one-house viоlating the challenged as doctrine of Policy Act of 1978 requirement ‍‌​‌​​‌‌​‌​​‌​​‌​​‌​‌​​​​​​​​‌‌​‌​​​​‌​‌​‌​‌​‌‌‌‌‍bicameralism §I, the United States Consti-. in art. 7 of contained presentment rulings of the provision allowed certain challenged tution. only take effect if to Energy Regulatory Commission Federal days a resolution Congress adopted within neither house of Representatives voted its The House of disapproving such rules. held the F.E.R.C/s rules. court disapproval of one of the I, § by depriving the President of violated art. one-house veto of violating requirement the bicameralism power and his veto Congress. The only one house of legislative action permitting congressio- of a question that the effect “there is no court stated agency’s In this scope is the the discretion. nal to alter veto the discretion case, practical probably was to withdraw the effect of the rules 469. The held the veto altogether.” 673 F.2d at scope by altering effectively changed law the the regu- valid preventing one otherwise F.E.R.C.’s discretion concurrence taking Accordingly, Senate’s lation from effect. necessary prerequisites were presentation the President disapproval resolution. 673 F.2d at to the effectiveness contravened veto also held one-house 465. The court legisla- it principle because authorized powers separation of by the two properly other powers share exercised ture to branches, stating: substantially rulemaking Supreme is has held that function of “The Court such, may enforcing public Congress administering law. As not create a it, houses, agency rulemaking. Congress’ enabling of its to control

device or one revising power duty agency with its ultimate to oversee connected congressional agency operates. The creation of further laws power Constitution.” 673 F.2d at 471. violates the explained problems inherent The court further the one- legislative veto device: house veto, hand, effectively Congress “The on the other enables ‘to one-house disapproval approval

participate prospectively . . . law “en- in the delegation authority by pursuant to a Con- acted” executive branch oversight, gress.’ effect, Congress expand its from is able to role one of an revision, eye one of shared administration. This overall increase congressional power purpose of the contravenes the fundamental unilaterally, ability Congress gains indeed direct doctrine. unicamerallv, agency specific discretion in manner сonsidered the exercise of enabling only passed. when the statute was first Not undesirable or unachievable congressional power, expand expand it but also does this total power. veto, agency rulemaking given greater national Because might normally Congress delegate, Congress than otherwise will let clearly so that a rules take effect unless undesirable veto deemed warranted.” 673 F.2d at 474-75. The court concluded: then, veto, problem represents it “The fundamental one-house by Congress

attempt delegated power. retain direct control over administrative Congress may provide detailed rules of conduct administered without officers, may provide policy guidance discretion administrative broad exercising the details to be filled in administrative leave officers substantial however, may not, one as discretion. It insert of its houses an effective adminis- trative decisionmaker.” 673 F.2d at 476. U.S., Consumers Union This decision was followed in Inc. v. F.T.C., (D.C. 1982), 691 F.2d 575 sub. nom. United Cir. aff'd F.T.C., States Senate (1983), 463 U.S. 1216 where a similar legislative oversight mechanism provisions contained in the the Federal Trade Improvements Commission Act of 1980 was held to separation violate the powers of doctrine. Voluntary, State v. A.L.Í.V.E.

In (Alaska 606 P.2d 769 1980), Supreme legislative the Alaska Court held the provi enactment sions of by the Alaska Constitution were violated a statute providing legislature, by that the concurrent adopted resolution by houses, regulation both could annul a agency of an depart ment. The Alaska provisions require constitutional enactment a majority legislature vote of each house of the in addition to presentment governor bill, passage for the of a much like provisions contained the Kansas Constitution. a similar case, Jersey Legislative Act, New Oversight which allowed Jersey Legislature by the New to veto concurrent resolution passed proposed by agencies, both houses all rules state Assembly Jersey held unconstitutional. General State New v. Byrne, 376, (1982). A.2d 90 448 438 Jersey The New N.J. Supreme legislative provision Court held the veto violated both separation powers principle require and the presentment ment of New Jersey Constitution. 90 at 385-92. Other N.J. legislative states have also similar oversight found mechanisms Opinion grounds. to be similar unconstitutional on See Justices, ex (1981); 121 N.H. 431 A.2d 783 State rel. Barker 64 Maloney v. 1981). Manchin, (W. Va. See also 279 S.E.2d 622

v. (1981). 349 A.2d Pac, Conn. analysis law in this state and a persuaded our

We are legislative that the veto decisions the above-discussed review of (d) (c) and of K.S.A. 1983 in subsections contained mechanism only tire doctrine 77-426 violates not Supp. §2, requirement art. 14 of presentment contained but also Chadha, made clear constitution. As our state essentially legal where it affects the resolution persons regulations of outside rights, duties comply provi with the enactment must and therefore branch 103 S.Ct. at 2784. See also State v. constitution. sions Voluntary, legislature P.2d at 773-74. Where our A.L.I. V.E. modify rules and reject, or revoke administrative attempts enacting legislation resolution it regulations concurrent 2, § art. 14. A comply provisions with the bill does which must house, law it has the final consideration of the not until become 2, § Harris v. Shan required by art. 14. governor as senate and ahan, 183, Syl. ¶ This was Kan. 387 P.2d not done here. Supp. passed in accord K.S.A. 1983 77-426 was

The fact that 2, § 14 our provisions of art. state constitution ance with the veto it opportunity had the does render governor the statute constitu subsequent acts of pass an act allows to viólate tional. The cannot Jersey Assembly State New the constitution. General V.E. by the court in State A.L.I. Byrne, 90 N.J. at 391. As stated Voluntary, 606 P.2d at 779: words, by approved governor, virtue enactment “In other of one itself, instances, of the constitutional constraints can free certain impermissibly govern its actions. Such an enactment would that would otherwise power possessed periods preserve legislative at one instant time for future incapable acting legislature might of the be of because when the otherwise away safeguards with the of II veto. It would also do formal article executive law-making. requirements accompany of the meant constitution which are in this not be eliminated fashion.” following the New with the conclusion stated agree

We Assembly State New General Jersey Supreme Court of Byrne, Jersey at 395-96: 90 N.J. separation Legislative Oversight is It violates the “The Act unconstitutional. impede powers giving Legislature Executive in its excessive Further, faithfully permits law. Act execute the constitutional mandate to effectively Legislature repeal existing participation amend laws without Foreclosing law-making process the Governor. the Governor from the offends and the Presentment Clause. This exercise legislative power Constitution forbids.” foregoing opinion, In accordance with the the motion of the against sustained; for dismissal of the (c) (d) sections Supp. of K.S.A. 1983 adjudged 77-426 are unconstitutional; following adopted by be and the resolutions legislature during the course its 1983 and 1984 sessions are adjudged invalid: House Concurrent Resolution Nos. 5094; Senate Concurrent Resolution Nos.

1648, 1652, 1654, 1655, 1656 and 1657. The respondent precluded Governor Carlin from act- John ing resolutions, of the above invalid ordered regulations to enforce administrative rules as adopted agencies executive and as filed with the Revisor of modified, rejected Statutes and not as or revoked concurrent legislature. resolutions of the applied various rules application to determine the future

of the law in a declared decision of this nature were discussed Vaughn Murray, and considered

P.2d 262 We think the rule retroactive effect which will officials, lawyers, litigants, governmental best serve the govern- agencies mental and the courts of this state is as follows: The law declared herein will given retroactive governing effect herein, rights parties pending to other cases when this decision is filed with Appellate the Clerk Courts and all cases, future but limited so new govern law will not rights pai'ties to cases a judgment terminated or verdict opinion befox-e this is filed.

Holmes, J., not participating.

Prager, J., concurring dissenting: respectfully I dissent syllabus ¶ poxtions corresponding opinion fx-om and the which hold that the Kansas should be dismissed from majority opinion correctly this action. The points out that against ‍‌​‌​​‌‌​‌​​‌​​‌​​‌​‌​​​​​​​​‌‌​‌​​​​‌​‌​‌​‌​‌‌‌‌‍brought body, action has been aas rather against legislatui'e, than individual members for the legis- exclusively usuxpation lative of a funсtion vested in the execu- department. my judgment, attorney general tive a bring protect action to the Constitu- this

proper party plaintiff to legislature. the from unconstitutional of Kansas tion controversy case between the clearly an actual There is Supreme in the branches. Court and executive legislative jurisdiction may properly assume judicial power of the exercise public significance. important great issue of an and determine judgment opinion with of the I concur the respects, all other court. majority of the part:

Herd, concurring part dissenting in I concur in J., legal entity which opinion the is a majority’s that the upon process; process service the of can be served satisfy is of two houses sufficient due presiding officers the the should be dismissed from this process; and that dissent, however, immunity. legislative I upon suit based majority’s opinion. remainder of ruling important case in law. In This is an constitutional us, powers usurping executive legislature, which not before violating separation powers, this court in violation of advisory against giving opinions, prohibition constitutional function, separation and thus itself violation of the executive powers. majority dangers opinion makes much of While separation powers doctrine between the exec- of the violation branches, judiciary danger utive and legislative powers usurping is more destructive. executive cited the evils of a violation of the Montesquieu Spirit Laws, judiciary Montesquieu, I XI, VI, p. (1873): ch. Book “[Tjhere liberty, judiciary separated if the be not from is no joined legislative, liberty with the life and executive. Were control; arbitrary judge subject exposed would be'then would might power, judge joined legislator. executive behave with Were it to the oppression.” violence and subject it has also been stated: On this wary constantly upon prerogatives to trench are “American courts any powers, government arrogate departments themselves undue other principle greatly they power; and this contributed lest the balance of disturb strength system government and to the the American the success of 2d, § pp. judiciary 829-30. 16 Am. Law itself.” See Constitutional Jur. fast held to the idea that “the years In recent this court has powers an separation integral inherent doctrine . . . Van republican government of the form of element Shanahan, 511 P.2d 223 Sickle The key judiciary concept to for the is the requires judicial judiciary restraint. restraint to re- Judicial disputes entering properly from respect frain not before and to concept jurisdiction. mаjority opinion The violates these “a country’s principles. quest government In this for of laws and (the law), of men” rule of we have come not to realize if the judiciary by law, majority does not abide there is law. no opinion is a of both the violation Constitution and the statutes precedent years and establishes a which will take to overcome. Initially, quo the remedies of mandamus warranto are not is an proper adequate remedy where there at law. The reason is object supersede remedies, “the of mandamus is not legal to but — Note, Mandamus An supply rather the want of them.” Expanded Concept, (1968). Thus, Washburn there exist L.J. prerequisites recognized. two mandamus which we have “(1) plaintiff right These are: must a clear legal have to the duty (2) performance sought, of the act or there must be no adequate remedy to other secure the relief desired.” 8 Washburn attorney at 71. no general There is debate that the has the L.J. action, thus, bring requirement this first has been however, second, Declaratory met. The judgment not. filed provides plain adequate a pursuant to K.S.A. 60-1701 legal remedy constitutionality challenge legislation questioned declaratory in the instant case. A judgment is an action duties, status, Thus, rights parties. “which declares the or the an action declaratory remedy judgment appropriate is the for a for the determination of a

justiciable controversy plaintiff legal where is in as to his doubt 2d, rights Declaratory Judgments p. § . . . .” 22 Am. 836. Jur. declaratory agency an judgment against party A action head regulation threatened enforcement of a modified provide an legislature, legisla- would allowable review of the judiciary. majority argues ture’s action it need not impose adequate remedy rule since action the court in lawsuits, provide case guidance this would avoid numerous important question, and agencies, resolve an deal with mat- appeal eventually. which the “expe- ter would arise on This is justifies the end means” and is the diency” on “the test based law. this rationale all the rule of Under consti- greatest threat process, can be will due abolished if it principles, even tutional questions lawsuits, important provide guidance, resolve avoid appeal eventually. will matter which arise on and resolve a year many upon govern- filed There are actions each individuals, agencies, as vast Wait for well as numbers mental court in to know how to act. Avoidance of this order decisions of this this a sufficient reason for unusual lawsuits not so, If were this cоurt should examine each state statute court. by one, express opinion subject in order to on one important litigation. public The fact avoid future demanding present question resolution does case presented judicial procedure. Most cases to this avoidance of strong public importance; speak issues there are in on many Finally, important presented than that here. fact more majority’s be decided argument that issue should now since eventually appeal thoroughly arise without merit. it will on appeals year, taken Considering the number of each this court argument support ruling improper that in an could never use manner. hand,

Mandamus, remedy much on is a harsher than other declaratory writ, judgment. Mandamus is viewed as a “drastic extraordinary character.” It sometimes referred to “as the an . judicial writ law . . .” It is highest known an “ex- traordinary remedy only which is in cases in which the available powerless procedure are usual forms of to afford relief.” “[cjourts proceed great the writ caution” and it is granting resort, cases, only “rare as a causes granted in last for that are 2d, §§ extraordinary.” 4-5, really pp. See 52 Am. Mandamus Jur. purpose rights 333-34. The of a mandamus action is “to enforce established, already rights rather than establish or declare the every proceeds upon assumption parties. It case complete legal right an applicant immediate and to the “ 2d, 4,§ . . thing p. . . 52 Am. demanded Mandamus Jur. 333. extraordinary It

Quo warranto also of nature. has been upon made the state some described as “a demand individual they corporation right show what exercise fran- or some which, appertaining according the state privilege chise or

69 land, they legally laws cannot exercise and the constitution grant from the state.” 65 Am. except by virtue of Jur. 1, cautiously § 2d, p. 230. It is “administered Quo Warranto principles.” with certain well-defined 65 Am. in accordance Jur. 5, p. § 2d, Warranto 233. Quo Thus, quo with which a mandamus or warranto the carefulness only posed preserved for those action must be actions rights dispute, abrogated by are without has been which the majority weighing in this case. There has not been a careful rights, declaratory judg- which results from a determination brought and heard in the lower ment action courts then appealed. majority’s controversy next is that there is case error no controversy jurisdiction. we have

in this case. Absent a case or no constitutionality with the Courts do not deal statute as a hypothetical question, questions cаn constitutional nor be dealt with as abstractions or as academic discussions. See United Raines, 17, 524, (1960); U.S. 4 L.Ed.2d S.Ct. States v. 519 Windsor, 364, Employees v. 353 U.S. Government L.Ed.2d (1957); Coney, 290 U.S. S.Ct. 838 Hicklin 54 S.Ct. 142 The state has suffered a L.Ed.2d injury by recognizable legislature’s alleged or identifiable improper agency method of revocation and modification of rules majority injury required states regulations. no when brought interpre- the action is “to obtain both ‘an authoritative guidance public law tation of the officials their business’, public question and to administration con- stitutionality legislature’s again actions.” This is the use means,” tyranny justifying upon which the “end doctrine always premised. Since this statement I without citation supported by a similar assume it is overbroad statement included Hurley, Buildings, in the decision in Manhattan Inc. v. court’s (1982). however, Hurley, 231 Kan. 643 P.2d 87 there intervention, controversy. was an actual Without the court’s Hurley, in had Buildings, Manhattan the builder no mechanism Secretary perform his to force the Kansas of Administration obligation Buildings. the State’s lease Manhattan Thus, Hurley proposition stand for the that there need does not is, fact, injured controversy. plaintiff, There no not be a case or by regulations in which modified no situation one of controversy in this case. The hardship, no causes exemplified the executive controversy is further lack of action, its agreeing remaining respondent branch, mandamus was and that was unconstitutional the law brief that in case are in controversy parties when the a There is no proper. therefore, rule, eagerness agreement. The court’s complete deciding hypothetical impermissible area of steps into advisory opinion. question. This is academic infringements in the rule impermissible constitutional The instance, any majority quite troublesome. For by the are adopted questions the constitution- government branch of time another opinion from this court may request an ality a statute it advisory strictly opinions are expediency rule. Such asserting the prior in its deci- and this court the constitution prohibited 339, 345, 581 P.2d 358 Cady Cady, 224 Kan. See sions. duty majority impose this court the by the on rules stated The attorney general capacity give in his position act in the deluged requests with such This court will be advisory opinions. — great public importance all of governmental officials from practice particu- consideration. Such demanding immediate political process. in the the courts larly because involves bad constitutionality of a bill requested to rule on the We will be enormity importance because of priоr to enactment — give agencies it will guidance other because rule. expediency judiciary in allowing infringements such danger in

The agree is As parties where all not overstated. a case such as this in his discussion of the pointed Fatzer out Justice rel., State, Fadely, dissent ex powers in his (1957): 669, 308 P.2d 537 separate apart kept government must be “There is a time when the preserved. government cases make The doubtful that our form of order — usurpations danger. Everyone beginnings create the the small the trouble outright usurpation we need have no fear of such at becomes alarmed rather, guard against occurrence; is the what we should be alive and ever governmental assumption imperceptible gradual increase into the but belonging department, properly to another.” one improper another writ mandamus grant body passed allegedly legislature,

reason. The law, dismissed from this case. been unconstitutional writ, therefore, the chief executive officer of is directed to state, statutes, governor. The mandamus seq. 60-801 et K.S.A. state mandamus is: proceeding compel court, tribunal, board, “a to corporation some inferior or some person perform specified duty, duty office, to a trust, results from the party direсted, official station of the to operation whom the order is or from

law.” K.S.A. 60-801. governor The in this case has been directed to refrain “from acting of the resolutions, above invalid ... to enforce regulations administrative rules and as adopted agencies executive and as filed with the Revisor of modified, rejected Statutes and as not or revoked concurrent legislature.” resolutions of the quote That injunc- describes tion, not mandamus. This is not an compel order to governor perform specified duty to a required by as Rather, statute. “[t]he writ of mandamus personal seeks to enforce the obligation of the addressed; individual it whom is upon rests the averred and assumed fact that the respondent defendant or has neglected or perform refused personal duty a . . . .” 2d, 52 Am. Jur. 8,§ p. Mandamus 336. The chief executive has not refused to perform duty. In fact governor perform wants to according petitioner’s request to the and this court’s order. It is the legis- lature which thus, has acted improperly; only the legislature may compelled to act under the writ of mandamus. Since the legislature has party, been removed as there is no one left to command and the writ this court improper. therefore Finally, necessary it is point out the error thе reasoning of majority opinion as to the violation legislature of the doctrine powers. of the government branch granted the authority representative to make laws as the people of the state. This is the nature Kansas Constitution. The is the representative people and it power has all pass legisla- prohibited by tion not Theis, the constitution. See Leek v.

Kan. 539 P.2d 304 The limits legislature, on the however, extend its delegation authority.

legislature may delegate not law-making power its to another government. branch of We have held: legislature may delegate “The to make laws but enact a law general upon terms which confers an officer or board administrative duties to apply law, and, accomplish end, enforce and to ascertain the existence fact, which the or board some event condition officer nonexistence or future ascertain; but, prescribe reasonably required the statute must clear stan- duty operate by the ‍‌​‌​​‌‌​‌​​‌​​‌​​‌​‌​​​​​​​​‌‌​‌​​​​‌​‌​‌​‌​‌‌‌‌‍statute will do so those vested with the make dards which rel., Fadely; State, 652, Syl. ¶ 7. ex o. 180 Kan. in the intended.” manner Giddings City Pittsburg, 421 P.2d

See also of § C.J.S., Law 141. (1966); Constitutional seq. 77-415 et legislature granted the executive K.S.A. power to make their own rules and the state the agencies of implement interpret lеgislation. rules regulations Those given the law. K.S.A. 1983 were also effect of See regulations 77-415(4). specific guidelines Supp. provided are no There rely in upon agencies the executive can which making. authority granted merely is not their enforce- rule court, authority, as but factfinding allowed our ment and authority. impermissible grant This an of actual branch, is of legislative power to executive exclusive Thus, powers. separation course a violation the doctrine such, any rule-making is itself unconstitutional. As statute are agencies pursuant to this statute rules made executive Thus, granting invalid. statute

modify regulations impermissible rules and was not agency branch, executive since into the encroachment invalid regulations it modified were and void ab rules and majority’s opinion only fails to the full consider initio. The argument, implications but also statute, unconstitutionality rule-making overlooks seq. et giving advisory opinions are Since we now K.S.A. 77-415 gov- appropriate that we the other branches of advise seems problem. ernment of

I, therefore, majority. rule set dissent from the oflaw out principles and majority violates established constitutional advisory pro- opinion continued violation as such invites hibition. join J., concurring dissenting: I in the con-

McFarland, Herd dissenting opinion except curring and Justice therein relative to the constitu- gratuitous comments contained seq. K.S.A. 77-415 et tionality J., joins concurring dissenting opinion

Lockett, Herd. Justice

Case Details

Case Name: State Ex Rel. Stephan v. Kansas House of Representatives

Court Name: Supreme Court of Kansas

Date Published: Aug 29, 1984

Citation: 687 P.2d 622

Docket Number: 56,880

Court Abbreviation: Kan.