IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS
DIVISION TWELVE
In the Matter of )
HORACE B EDWARDS )
PATRICIA ROBBINS )
Plaintiff, )
and ) Case No. 04 C 1290
)
RON THORNBURGH KANSAS )
SECRETARY OF STATE )
Defendant. )
MEMORANDUM DECISION AND ORDER
This case comes before the Court on the Plaintiff’s Petition for a Writ of Mandamus filed on September 17, 2004. A telephone scheduling conference was held on September 22, 2004, and this case was placed on expedited schedule by the Court. An informal telephone conference was held on September 24, 2004, to discuss issues relating to discovery and stipulations. On September 28 and 29, 2004, an evidentiary hearing was held to consider the Plaintiff’s request for a Temporary Injunction and Peremptory Writ or Order of Mandamus. Since the Defendant’s Motion to Dismiss was not filed until September 27, 2004, and the Plaintiffs have not yet had an opportunity to respond, the Court does not deem it to be submitted for ruling.
FINDINGS OF FACT.
After due consideration of the testimony and exhibits presented at the evidentiary hearing on September 28 and 29, 2004, the Court finds as follows:
1. The Plaintiff, Horace B. Edwards, is qualified to serve as United States Senator if elected.
2. Mr. Edwards is not affiliated with a political party and would be eligible to accept an independent nomination for the office of United States Senator.
3. The Plaintiff, Patricia A. Robbins, is a registered voter in Shawnee County, Kansas and signed a nomination petition in support of Mr. Edwards’ independent candidacy for United States Senator.
4. The Defendant, Ron Thornburgh, is the Secretary of State for the State of Kansas.
5. On August 2, 2004, Mr. Edwards submitted nomination petitions for the office of United States Senator to the Kansas Secretary of State’s Office.
6. According to the testimony of Mr. Edwards, he submitted 5,267 total signatures on the nomination petitions. (Although Mr. Edwards testified that he believed that there were additional petitions submitted, he was unable to produce any documentation regarding the total number of signatures.)
7. The Secretary of State’s Office counted 5,227 total signatures on the nomination petitions.
8. The signatures of voters for multiple counties were commingled on the same nomination petition pages.
9. Based upon a review of a portion of the nomination petitions by county elections officials, the Secretary of State’s staff found that there were at least 604 invalidated signatures on the nomination petitions and concluded that Mr. Edwards had not obtained the required 5,000 signatures from qualified voters.
10. However, the Secretary of State did not make a determination regarding the validity of Mr. Edwards’ nomination petitions until after August 16, 2004.
11. The Secretary of State mailed notice to Mr. Edwards that he had not met the requirement of obtaining the signatures of at least 5,000 qualified voters on his nomination petitions on August 27, 2004.
12. Mr. Edwards filed an objection to the Secretary of State’s determination on September 1, 2004.
13. Mr. Edwards and Mr. Thornburgh spoke by telephone regarding this matter on more than one occasion.
14. Mr. Edwards and Mr. Thornburgh met in person regarding this matter on September 7, 2004.
15. The State Objections Board met to hear Mr. Edwards’ objections on September 8, 2004.
16. Mr. Edwards appeared at the Objections Board hearing in-person.
17. Attorney General Phill Kline appeared at the Objections Board hearing by Assistant Attorney General Karl Hansen; Lieutenant Governor John Moore appeared by Special Assistant Randy Mettner; and, Secretary of State Ron Thornburgh appeared in person.
18. The Objections Board considered the objections asserted by Mr. Edwards.
19. Specifically, the Objections Board considered Mr. Edward’s contention that the Secretary of State failed to comply with of K.S.A. 25-208a(a) and that the Secretary of State’s office did not follow proper procedures in handling the petitions.
20. After hearing arguments, reviewing written materials and discussing the matter, the objections board unanimously ruled that the Secretary of State’s decision to invalidate Mr. Edwards’ candidacy should be upheld, and that Mr. Edwards should not appear on the general election ballot. The board found that Kansas law, specifically, K.S.A. 25-303, requires 5,000 signatures of qualified voters on independent nominating petitions for any office to be filled by the voters of the state at large, including United States Senator. The board found that Mr. Edwards’ petition contained 5,227 total signatures when submitted to the Kansas Secretary of State. The board further found that after review by the county election officials, 604 signatures were invalidated, bringing the total number of signatures below the requisite 5,000.
21. The minutes or summary of the hearing indicates that the Objections Board found that the time periods set forth in K.S.A. 25-208a(a) are directory rather than mandatory; that a total of 5,227 signatures were contained on the nomination petitions presented by Mr. Edwards on August 2, 2004; and, that at least 604 of these signatures had been properly invalidated by county election officials. Thus, the Objections Board concluded that Mr. Edwards had not presented nomination petitions for the office of United States Senator to the Secretary of State signed by a minimum of 5,000 qualified voters as required by K.S.A. 25-303.
22. On September 14, 2004, Secretary of State Thornburgh certified the candidates for office to be included on ballots at the general election to be held on November 2, 2004.
23. Subsequent to the Objections Board hearing, Mr. Edwards and/or his attorneys requested that several county election officials conduct reviews or “research projects” regarding the signatures contained on his nomination petitions. The results of these reviews or “research projects” are attached to the Petition For Writ of Mandamus in this case.
24. This action was filed in the Shawnee County District Court at 5:01 p.m. on Friday, September 17, 2004. On the same day, overseas or federal service ballots were mailed out by county election officials throughout the State of Kansas.
25. The case was placed on an expedited schedule and a telephone scheduling conference was conducted by the Court on September 22, 2004. An informal telephone status conference was conducted on September 24, 2004.
26. Between September 22, 2004, and the commencement of the evidentiary hearing, the parties and their counsel conducted informal discovery and worked on written stipulations.
27. Although counsel had anticipated that the evidentiary hearing would be completed on the morning of September 28, 2004, it actually took nearly two days and was not completed until the afternoon of September 29, 2004.
28. At the evidentiary hearing, the testimony of the following witnesses was presented: Patty Jaimes, Douglas County Elections Commissioner; Marni Penrod, Deputy Douglas County Elections Commissioner; Elizabeth Ensley, Shawnee County Elections Commissioner; Connie Schmidt, Johnson County Elections Commissioner; Horace Edwards; Bryan Caskey, Administrative Assistant in Elections Department of the Secretary of State’s Office; Ron Thornburgh; and, Brad Bryant, Supervisor of Elections for the Secretary of State.
29. The parties submitted written stipulations at the hearing which were signed by their attorneys. The written stipulations were accepted by the Court and were filed with the Clerk of the District Court.
30. In addition, the Court accepted certain oral stipulations of the parties which were stated on the record at the hearing.
31. The Court admitted 39 exhibits into evidence at the hearing, including the original nomination petitions which had been kept and maintained by the Secretary of State’s office since August 2, 2004.
DISCUSSION AND CONCLUSIONS OF LAW.
The plaintiffs have requested that the Court enter a peremptory Writ or Order of Mandamus and a Temporary Injunction in this case. Specifically, the Plaintiffs request that the Court issue an order directing Secretary of State Ron Thornburgh “(1) to refrain from issuing or to withdraw or suspend any certification of final certification of candidates for the office of Unites States Senate, State of Kansas, to be placed on the official ballot for the general election scheduled to be held on November 2, 2004 until and unless Horace B. Edwards is certified as a candidate of such office and placed on the official ballot; (2) to certify Horace B. Edwards as an Independent Candidate of the office of United States Senator, State of Kansas, in the general election scheduled to be held on November 2, 2004; and/or (3) to place the name of Horace B. Edwards as an Independent Candidate for the office of United States Senator, State of Kansas, on the form of official ballot for the general election scheduled to be held on November 2, 2004 and to ensure that the name of Horace B. Edwards appears as an Independent Candidate for the office of United States Senator, State of Kansas, on all official ballots used in such general election.” The Defendant asks the Court to deny the requested relief and to dismiss this action for failure to state a claim upon which relief may be granted.
In Hiatt v. Jack Brier, Secretary of State; Curt Schneider, Attorney General of the State of Kansas; Shelly Smith, Lieutenant Governor of the State of Kansas; and, Mary Hope, Elections Commissioner of Shawnee County, Kansas, 2 Kan. App. 2d 610, 586 P.2d 55 (1978), the Kansas Court of Appeals considered a case involving an objection filed by an unsuccessful candidate in a primary election for the Democratic nomination for the Kansas House of Representatives. The objection was filed pursuant to K.S.A. 25-308. Three of the defendants were members of the state “contest board,” and the other defendant was a local elections commissioner. “The contest board, comprised of the lieutenant governor, secretary of state and attorney general, met, heard testimony, received affidavits and considered the matter . . . overruled plaintiff’s objection and assessed costs to the plaintiff by unanimous vote.” 2 Kan. App. 2d at 610. Although the panel rendered its decision on September 8, 1978, the final decision was not reduced to writing and filed until September 28, 1978. 2 Kan. App. 2d at 611. On October 16, 1978, a petition was filed in the Shawnee County District Court seeking “relief in mandamus and injunction.” (Id.) A hearing was held on October 19, 1978 and the Court orally announced its decision to dismiss the case on October 20, 1978. (Id.)
The Hiatt decision provides guidance regarding the applicable standard of review in this case. The Kansas Court of Appeals found that the contest board “is administrative in nature and performs a quasi-judicial function.” 2 Kan. App. 2d at 612. Noting that the statute governing the contest board provided that its decisions “shall be final,” the Hiatt court held that the board’s decision was not subject to appellate review. (Id.) However, the Kansas Court of Appeals found that “extraordinary remedies may be utilized to review decisions of the contest board which were induced by bad faith or the result of arbitrary acts showing wrongful conduct amounting to fraud, corruption or oppression [citations omitted] or to compel the board to act where it refused to do so [citation omitted].” (Id.)
At page 613 of the Hiatt decision, the Kansas Court of Appeals found that the following language taken from Miller v. Clark, 62 Kan. 278, 288, 62 P. 664 (1900), was “controlling precedent” regarding review of a decision made by the contest board:
“It may be conceded that this tribunal [contest board] is endowed with quasi- judicial power. It is important that it act expeditiously, and to permit appeals or proceedings in error to be taken from its decisions would often defeat the purpose of its creation. The right of appeal is not an inherent one.”
Thus, the Hiatt court found that the “Plaintiff’s only remedy was to seek review of the contest board decision by extraordinary remedy.” 2 Kan. App. 2d at 613.
As in the Hiatt case, the Objections Board unanimously voted to deny Mr. Edwards’ objections in this case on September 8, 2004. The minutes or summary of the hearing were attached to the Petition filed in this case. K.S.A. 25-308(c) provides that decisions of the Objections Board “shall be final.” On September 17, 2004, the Plaintiffs filed their Petition for Writ of Mandamus. Unlike the plaintiff in the Hiatt case, however, the Plaintiffs in this case filed their Petition within the time allowed by K.S.A. 25-308(c). Thus, although Mr. Edwards has no right to appeal the decision of the Objections Board, his request for provisional relief in mandamus and injunction is properly before this Court.
After hearing testimony over the course of two (2) days and after reviewing the large volume of documents admitted into evidence, the Court finds that there is no evidence of bad faith, fraud, corruption or oppression by either the Objections Board or by the Secretary of State in the record. In fact, Mr. Edwards admitted during his testimony that he was not alleging bad faith, fraud, corruption or oppression in this case. Rather, he testified that he believed there was “negligence” and “incompetence” shown by the Secretary of State’s Office in the handling of his nomination petitions. Although Mr. Edwards has spotlighted problems which should be addressed by the Secretary of State, the Kansas Legislature, the Lieutenant Governor and the Attorney General relating to the handling of nomination petitions as well as relating to the handling of objections, negligence and/or incompetence is not equivalent to bad faith, fraud, corruption or oppression.
As indicated above, the Hiatt decision also allows the Court “to compel the board to act where it refused to do so [citation omitted].” 2 Kan. App. 2d at 612. It does not appear that the Plaintiffs are contending that the Objections Board refused to act. It is undisputed that the Objections Board met on September 8, 2004, that Mr. Edwards was present at the hearing and that the board unanimously denied his objections. However, counsel for the Plaintiffs argued during the hearing in this case that the Objections Board was improperly constituted. Specifically, it was alleged that it was improper for the Lieutenant Governor and Attorney General to send representatives to serve as their proxies at the Objections Board hearing on September 8, 2004. Since it is undisputed that the only defendant in this case, Ron Thornburgh, personally participated in the Objections Board hearing, the Court finds no basis upon which to conclude that the board refused to act. Moreover, if the Plaintiff sincerely believed that the Lieutenant Governor and/or the Attorney General failed to exercise their statutory duties, they should have been joined as parties to this action as was done in the Hiatt case. As a matter of fundamental fairness, if an allegation is going to be made that a public official failed to perform his or her statutory duties, the official should have a right to be heard.
Although not mentioned in the Petition, in the Plaintiff’s Motion For Provisional Relief or in Mr. Edwards’ testimony, counsel for the Plaintiffs contended in his closing argument that the actions (or lack thereof) by the Secretary of States Office and/or the Objections Board constituted illegality. It should be recognized that the Hiatt case cites decisions, in cases not involving elections issues, which hold that “if no appeal from an administrative decision is provided for, district court jurisdiction is limited to original actions to determine if the administrative body acted illegally, fraudulently or oppressively.” 2 Kan. App. 2d at 613. The case of Umbehr v. Board of County Commissioners of Wabaunsee County, 252 Kan. 30, 36, 843 P.2d 176 (1992), clarified the meaning of the phrase “illegal, fraudulent, or oppressive.” In Umbehr, the Kansas Supreme Court held as follows:
It is generally held that a finding of illegality with regard to administrative proceedings relates to the procedural aspects of the proceedings and the determination of whether the action taken was within the authority of the agency or board. City of Wichita v. Board of Sedgwick County Comm’rs, 232 Kan. at 151. A fraudulent act in general is comprised of anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another. Newell v. Krause, 239 Kan. 550, Syl. Para. 3, 722 P.2d 530 (1986). A board of agency’s act is oppressive when it subjects a person to cruel or unusual hardship through misuse or abuse of authority of power or when it deprives a person of any rights, privileges, or immunities secured by our Constitution or laws.
252 Kan. at 36-37.
The Court has examined the record to determine if the action taken by the Objections Board “was within the authority of the agency or board.” No testimony was offered at the hearing tending to prove that the Objections Board acted outside its authority. As indicated above, it is undisputed that the only defendant in this case, Ron Thornburgh, was personally present at the hearing and the Court finds that he performed his statutory duties pursuant to K.S.A. 25-308(c). Again, if the Plaintiffs sincerely believed that the Lieutenant Governor and Attorney General failed to perform their official public duties as members of the Objections Board, they should have been joined as parties to this case. (The Court does note that the Attorney General is authorized to appoint deputies pursuant to K.S.A. 75-3111 and the Lieutenant Governor is authorized to appoint an Assistant pursuant to K.S.A. 75-3103.) Regardless, based on the evidence presented at the evidentiary hearing, the Court does not find that the Plaintiffs have a substantial likelihood of prevailing on the issue of illegality as it relates to the Objections Board.
The Plaintiffs also contend that the Secretary of State violated the provisions of K.S.A. 25-208a(a) and, therefore, Mr. Edwards’ name should automatically be placed on the general election ballot pursuant to K.S.A. 25-308 regardless of whether he submitted 5,000 qualified signatures on his nomination petition. Although, the Plaintiffs wish to strictly interpret the provisions of K.S.A. 25-208a(a) which provides that “the secretary of state shall determine the validity of such petitions “within ten (10) business days” from the date of filing of nomination petitions . . . to become a candidate of intention to become a candidate for United States Senator,” they wish to have this Court simply disregard the language in K.S.A. 25-303(e) which provides that “all signers of each separate nomination petition shall reside in the same county and election district of the office sought.” (Emphasis added.) It is undisputed that Mr. Edwards filed nomination petitions which commingled residents of multiple counties on the same page and it is also undisputed that the Secretary of State took longer than ten (10) business days to determine the validity of such petitions. It is also undisputed that the Secretary of State’s office gave Mr. Edwards the benefit of the doubt by accepting his nomination petitions for filing notwithstanding the failure to comply with the provisions of K.S.A. 25-303(e). (See also K.S.A. 25-208a(a) which requires the petitions to be reviewed by the county election officials “of the county of the district in which the nomination petition was passed.”) Moreover, since the Plaintiffs are seeking an equitable remedy in this case, and there was substantial evidence presented at the hearing regarding the difficulties encountered by the county election officials in trying to determine who was registered voters in their county as a result of the commingled petitions, the Court does not find that it would be equitable to hold the Secretary of State strictly to the ten (10) business days deadline under the factual circumstances presented.
It is also important to recognize that the Objections Board specifically considered the issue regarding the Secretary of State’s failure to determine the validity of the nomination petitions within ten (10) business days and denied Mr. Edwards’ objections. Even if the Objections Board decision was not final, which it clearly is pursuant to K.S.A. 25-308(a), there is simply no evidence in the record to support the position that the Secretary of State acted either in bad faith or illegally. Rather, the evidence reveals just the opposite. The Secretary of State accepted Mr. Edwards’ nomination petitions filed shortly before the deadline expired at noon on August 2, 2004, even though they contained commingled signatures from various counties. The Secretary of State and the county election officials were faced with conducting a primary election the next day. At the very least, the evidence reveals that the commingling of the signatures of residents of more than one county on the separate nomination petitions submitted to the Secretary of State’s Office made it much more difficult to have the county election officers “check the petitions . . . for valid signatures and certify the results of such check within 10 days, Saturdays, Sundays and holidays not included, of the date the petitions were filed with the secretary” as required by K.S.A. 25-208a(a).
As the Objections Board noted and as supported by the testimony offered at the hearing in this case, the Secretary of State’s Office relied upon Attorney General Opinion No. 82-134 issued on June 21, 1982. In the Attorney General’s Opinion, it was concluded that the timelines set forth in K.S.A. 25-208a are “directory” rather than mandatory. In so concluding, the Attorney General stated:
Accordingly, we believe that an election officer is permitted to determine the validity of a declaration of intent within a period of time after its filing that is reasonable under all the attending facts and circumstances. To conclude otherwise would have a potentially detrimental effect on the purity of the election process. It would permit an unqualified candidate, i.e., one who has failed to comply with statutory prerequisites of candidacy, to appear on the ballot by virtue of an election official’s mistake, inadvertence or untimely action.
The Court concurs with the opinion of the Attorney General. To allow a candidate with less than 5,000 qualified signatures to appear on the ballot for statewide office simply because the Secretary of State’s office and the county election officials determine the validity of the nomination petitions in an untimely manner would defeat the legitimate state interest of maintaining the integrity of elections. This is particularly true in light of the facts presented in this case. Although Mr. Edwards is certainly qualified to serve as a United States Senator if elected, and has a distinguished record as a World War II veteran, as an engineer, as a business leader and as a former Secretary of Transportation of the State of Kansas, evidence presented at the hearing tends to establish that the failure of his volunteers to make sure that “[a]ll signers of each separate nomination petition shall reside in the same county” as required by K.S.A. 25-303(e) contributed to the delay in determining the validity of the petitions by the Secretary of State and the county election officials as required by K.S.A. 35-208a(a).
The United States Supreme Court has held that “the state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions” regarding ballot access. Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1570, 75 L.Ed. 2d 547 (1983). In Anderson, the Court further found that “[t]he State has the undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot. . . .” 460 U.S. at 788, fn 9. Clearly, the citizens of the State of Kansas have a legitimate interest in the requirement that a minimum of 5,000 qualified voters sign the nomination petitions of an Independent candidate for statewide office before his or her name is placed on the ballot.
Once the great legal arguments have been made and the emotions have calmed, the most important question to the Plaintiffs, to the Defendant, to this Court and to the citizens of Kansas should be whether Horace B. Edwards submitted “nomination petitions signed by not less than 5,000 qualified voters” to the Secretary of State’s office on August 2, 2004. If he did present a sufficient number of qualified signatures, the citizens of Kansas would be served by certifying the name of Horace B. Edwards as a Candidate for the Office of United States Senator for the general election to be held on November 2, 2004. If he did not present a sufficient number of qualified signatures, it would be an injustice to require the Secretary of State’s office and 105 county election officials to be burdened with the time and expense which the evidence established would result from the addition of Mr. Edwards’ name to the ballot at this late date.
In order to be fair to Mr. Edwards and to the citizens of the State of Kansas, this Court and its staff has reviewed the originals of the nomination petitions delivered to the Secretary of State’s office on August 2, 2004, which were admitted into evidence in this case as Exhibit B. In addition, this Court and its staff has reviewed the originals of the documents returned to the Secretary of State’s office from the county election officials and marked as Exhibit C. After reviewing the original nomination petitions, the Court finds that there are less than the 5,267 total signatures as claimed by the Plaintiffs. However, in order to give Mr. Edwards and his supporters the benefit of the doubt, the Court will use the number of 5,267 total signatures for the purposes of this decision.
After reviewing the originals of the documents returned to the Secretary of State’s office by county election officials, the Court finds that 547 persons who signed the nomination petitions resided in the county in which the review was conducted but that they were not registered voters. In order to give Mr. Edwards the benefit of the doubt, the Court will not consider the other signers who were found to be unqualified but will use 547 as the number of properly invalidated signatures. Subtracting 547 properly invalidated signatures from the 5,267 total signatures presented, the Court finds that Mr. Edwards submitted the signatures of 4,720 qualified Kansas voters on the nomination petitions presented to the Secretary of State’s office on August 2, 2004. Thus, even when the evidence presented is viewed in a light most favorable to the Plaintiffs, Mr. Edwards presented substantially less than 5,000 signatures of qualified voters as required by K.S.A. 25-303.
CONCLUSION.
Based on a review of all of the testimony, exhibits, and legal arguments presented by the parties in this case, the Court does not find a substantial likelihood that the Petitioner will ultimately prevail on the merits. Likewise, the Court does not find that the Plaintiffs will suffer irreparable harm if the temporary injunction is denied. Although the opportunity to “write-in” a candidate’s name is clearly not a substitute for having his or her name on the printed ballot, the Plaintiff and the signers of the nomination petitions will not be disenfranchised. They will still have the right to vote for Horace B. Edwards for United States Senator if they desire to do so on November 2, 2004.
It is also important to recognize that the Election Commissioners of Douglas County, Johnson County and Shawnee County were persuasive in their testimony regarding the time and expense which would be required in the 105 counties across the State of Kansas to add another candidate for United States Senator at this late date. The Commissioners testified that federal service ballots have been mailed and returns are already being received. They further testified that many ballots are at the printers, that voting machines are being prepared and that advanced voting begins on October 13, 2004. Thus, the Court finds that the threatened harm to Plaintiffs is not outweighed by the potential damage which the entry of a temporary injunction may cause the Defendant and to the citizens of Kansas.
IT IS THEREFORE ORDERED by the Court that the Plaintiff’s request for a Temporary Injunction and for a Peremptory Writ or Order of Mandamus is hereby denied.
IT IS SO ORDERED.
Entered on this day of 2004.
David E. Bruns
District Court Judge
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the day of , 2004, she served a true and correct copy of the above and foregoing pleading by United States mail, first class postage prepaid; telefax, and that the transmission was reported as complete and without error and the telefax machine complied with Supreme Court Rule 119(b)(3); or hand delivery; addressed as follows:
Jean Lamfers
Attorney at Law
21911 W. 66th St. Ste, 200
Shawnee, KS 66226
Fax # 913-962-8202
Ken Fowler
Attorney at Law
555 S. Kansas Ave.
Topeka, KS 66603
Fax # 232-5841
Wm. Scott Hesse
Office of the Attorney General
Memorial Hall
120 SW 10th Ave.
Topeka, KS 66612
Fax # - 291-3767
Melissa Wangemann
Office of the Secretary of State
Memorial Hall
120 SW 10th Ave.
Topeka, KS 66612
Fax # 296-3659
Felicia M.Theel
Administrative Assistant