MEMORANDUM DECISION AND ORDER

The above matter comes before the Court on Petitioner Estes’ Petition for a Temporary Restraining Order. After careful consideration, the Court finds and concludes as follows:

FACTS

1. This matter is properly before this Court. This Court has jurisdiction over the parties and the subject matter.

2. Petitioner Estes is a registered member of the Kansas Republican Party.

3. Respondent Thornburgh is the Secretary of the State of Kansas.

4. Kansas primary election law is governed by K.S.A. § 25-201 et seq. Voter qualification requires the voter to

be a citizen of the United States, at least eighteen years of age, and duly registered. K.S.A. § 25-215.

5. No voter shall be allowed to receive the ballot of any political party except that with which such voter is affiliated. K.S.A. § 25-3301(d).

6. The Constitution ("Constitution") and By-Laws of the Kansas Republican Party establish the powers given to the Kansas Republican Party Chairman.

7. Article IX of the Constitution establishes the manner in which the Constitution may be amended.

8. On May 14, 2004, Respondent Thornburgh wrote a letter to Dennis Jones, Kansas Republican Party Chairman ("Chairman"). The letter informed the Chairman of a

recently decided case, Beaver v. Clingman, Case No. 03-6058. The letter requested a response from the Chairman as to whether the Republican Party

open its primary election to members of other parties. The response deadline was June 10, 2004.

9. On or about June 4, 2004, the Chairman informed Respondent Thornburgh that

the Republican Party Primary scheduled for August 3, 2004, would include unaffiliated voters.

10. On June 10, 2004, Petitioner Estes filed a petition for a Temporary Restraining Order restraining Respondent

Thornburgh from allowing unaffiliated voters to participate in the Republican Party Primary on August 3, 2004.

DISCUSSION

I. REQUIREMENTS FOR A TEMPORARY RESTRAINING ORDER

An injunction is an equitable remedy and its grant or denial in each case is governed by principles of equity. Wichita Wire, Inc. v. Lenox, 11 Kan. App. 2d 459, 461 (1986). The purpose of a temporary or preliminary injunction is not to determine any controverted right, but to prevent injury to a claimed right pending a final determination of the controversy on its merits. Id. The grant of a temporary injunction would not be proper if it would appear to accomplish the whole object of the suit without bringing the cause or claim to trial. Id. A temporary injunction merely preserves the status quo until a final determination of a controversy can be made. Id. (Emphasis Added).

To grant Petitioner Estes' request for a temporary injunction, the following four-part test must be met:

(1) substantial likelihood that the Petitioner Estes will eventually prevail on the merits;

(2) a showing that Petitioner Estes will suffer irreparable injury unless the injunction issues;

(3) proof that the threatened injury to Petitioner Estes outweighs whatever damage the proposed injunction may cause the opposing parties;

(4) a showing that the injunction, if issued, would not be adverse to the public interest.

See Lenox at 462.

CONCLUSION AND ORDER

A. THERE IS A SUBSTANTIAL LIKELIHOOD THAT PETITIONER ESTES WILL SUCCEED ON THE MERITS and WILL SUFFER IRREPARABLE INJURY UNLESS THIS COURT GRANTS THE TEMPORARY RESTRAINING ORDER

The Chairman took affirmative action to include unaffiliated voters in the August 3, 2004 Republican Primary Election. It appears the Chairman's declaration did not have Constitutional authority nor supportable by the Republican Party's By-Laws. The Constitution was not changed to grant the Chairman the authority required to issue that declaration. In short, the Chairman's decision appears to be without authority. Therefore, it is likely Petitioner Estes will succeed on the merits.

Most importantly, however, the Chairman's decision allowing unaffiliated voters in the August 3, 2004 Republican Party Election violates K.S.A. § 25-3301(d). Therefore, if this Court allows the Secretary of State to rely upon the Chairman's decision, Petitioner Estes' will most certainly suffer irreparable harm. In fact, all Kansas citizens will be harmed if this Court knowingly allowed the Secretary of State to violate Kansas state law.

B. GRANTING THE TEMPORARY RESTRAINING ORDER WILL NOT DAMAGE RESPONDENT THORNBURGH

Nothing in the record indicates that granting the Temporary Restraining Order will damage Respondent Thornburgh in any manner.

C. THE PUBLIC WILL NOT BE ADVERSELY AFFECTED IF THE TEMPORARY RESTRAINING ORDER IS GRANTED

The public will not be harmed by granting the Temporary Restraining Order especially considering the Lennox court's notion that [a] temporary injunction merely preserves the status quo until a final determination of a controversy can be made. See Lennox at 461. The final determination necessarily rests on whether the Chairman's decision was truly without authority. If the decision was without authority, Respondent Thornburgh will not have the ability to include unaffiliated voters.

IT IS THEREFORE ORDERED THAT Petitioner Estes' Petition for a Temporary Restraining Order restraining Respondent Thornburgh from allowing unaffiliated voters to participate in the Republican Party Primary on August 3, 2004 is HEREBY GRANTED.

IT IS SO ORDERED

Dated this ___________ day of ___________ 2004.

___________________________

Charles E. Andrews, Jr.

District Court Judge