IN THE THIRD JUDICIAL DISTRICT COURT, KANSAS
DIVISION FOUR
State of Kansas ex rel. Robert D. Hecht, )
District Attorney, Third Judicial District, )
)
Plaintiff, )
v. ) Case Number: 03-C-1458
)
Harry (Butch) Felker, III, )
Mayor, City of Topeka, )
)
Defendant. )
MEMORANDUM DECISION AND ORDER
This matter comes before the Court on Defendant’s motion pursuant to K.S.A. 60-212(b)(1). Defendant raises the defense that the Court lacks subject matter jurisdiction over Plaintiff’s ouster action against Defendant. Defendant moves that Plaintiff’s action be dismissed and Defendant is restored to the office of Mayor. After careful consideration, the Court rules as follows:
FACTUAL BACKGROUND
1. On September 26, 2003, Plaintiff filed a Petition for Declaratory Judgment and Quo Warranto (“Ouster Petition”) alleging that Defendant committed particular violations for which Defendant should be ousted from the office of Mayor.
2. On October 17, 2003, after a four-day hearing, the Court suspended Defendant from the office of Mayor until the final determination of the Ouster Petition. At the same time, the Court dismissed every allegation in the Ouster Petition except the allegations relating to the conduct that gave rise to violations of the Campaign Finance Act. (See K.S.A. 25-4142 et seq.)
3. On October 27, 2003, Defendant filed a Motion To Dismiss For Lack of Subject Matter Jurisdiction (“Motion”) pursuant to K.S.A. 60-212(b)(1). In the Motion, Defendant postulates that the Kansas Legislature exclusively authorized the attorney general to bring an ouster action for violations of the Campaign Finance Act and therefore Plaintiff, a district attorney, lacks standing to bring the Ouster Petition.
4. Plaintiff rejects Defendant’s reasoning. Plaintiff argues that he categorically possess standing to bring the Ouster Petition. Plaintiff asserts that Defendant’s Motion is meritless and should be denied.
DISCUSSION
For this Motion, only one question needs answered. Does Plaintiff have standing to bring an ouster action against Defendant on the remaining allegations? The Court holds that he does.
Defendant characterizes Plaintiff as bringing a Quo Warranto action under chapter 60 of the Kansas Statutes as the legal foundation for the Ouster Petition. (See K.S.A. 60-1201 through 60-1208). The Quo Warranto provisions, argues Defendant, are general in nature and do not govern an ouster action for violations of the Campaign Finance Act.
In contrast, Defendant asserts that the Campaign Finance Act, located under chapter 25 of the Kansas Statutes, controls who may bring an ouster action to remove an elected official from office for violating its provisions. More specifically, Defendant argues that the Campaign Finance Act vests sole authority in the attorney general to bring any ouster action against him.
Defendant reaches the conclusion that Plaintiff cannot bring the Ouster Petition by parsing the language of the Campaign Finance Act. In particular, Defendant converges on the last sentence in subsection (d) of K.S.A. 25-4166 in which the words “attorney general” are included but the words “district attorney” are omitted. Thus, surmises Defendant:
The Campaign Finance Act is newer and more specific legislation that the Quo Warranto provisions. K.S.A. 25-4166(d) is clear and unambiguous. Only the attorney general can bring an action to oust a mayor for violations of campaign finance laws. The district attorney has no authority to bring an ouster action under the Campaign Finance Act and, therefore, lacks standing to proceed.
(Def.’s Mem. in Supp. at 6-7.)
Defendant’s statutory construction, although persuasive, is not correct. Plaintiff has standing under Chapter 60 to bring the Ouster Petition. The pertinent Chapter 25 statutory provisions do not enjoin a district attorney from commencing an ouster action against a person who holds a non-state office.
“It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.” State v. Harper, 275 Kan. 888, 891 (2003) (citations omitted). After carefully analyzing the Campaign Finance Act, including the legislative minutes and history leading to its enactment, the Court determines that the legislature intended to and did authorize the attorney general to bring an ouster action against any person “elected to a state office” who violated any provisions of the Campaign Finance Act. K.S.A. 25-4166(a). The Court further determines that under Quo Warranto, the legislature intended any “[p]roceedings to oust a state officer shall be commenced only by the attorney general.” K.S.A. 60-1206(b) (emphasis added). However, the Court does not accept Defendant’s determination that the legislature intended the Campaign Finance Act to abrogate a district attorney’s ability to bring an ouster action against a city officer.
The Campaign Finance Act and Quo Warranto provisions should be construed in pari materia. When this is done, the relevant statutes therein that deal with ouster are harmoniously consistent. That is, if a person holding a state office violates the Campaign Finance Act, then only the attorney general has standing to bring an ouster action. Similarly, if a person holding a city office violates the Campaign Finance Act, then the attorney general or a district attorney may bring an ouster action.
Moreover, Plaintiff pleads additional claims in the Ouster Petition relating to Defendant’s conduct within the scope of the alleged violations of the Campaign Finance Act that are separate grounds to base an ouster action.
CONCLUSION
The Court denies Defendant’s Motion To Dismiss For Lack of Subject Matter
Jurisdiction. This Memorandum Decision and Order is the Court’s final judgment. Further journal entries are not required.
It is so ordered.
Dated this _____ of November 2003.
Eric S. Rosen
District Judge