IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS

DIVISION NINE

SUSAN ESTES,                                                          )

                                                                                    )

                        Petitioner,                                             )

v.                                                                                 )

                                                                                    )                      Case No. 04-C-813

RON THORNBURGH, in his official capacity as          )

Kansas Secretary of State, and                                     )

                                                                                    )

DENNIS JONES, in his official capacity as                   )

Chairman of the Kansas Republican Party,                    )

                                                                                    )

                        Respondents.                                       ) 

__________________________________________)

MEMORANDUM DECISION AND ORDER

            The above matter comes before the Court on Petitioner Estes’ Petition for a Permanent Injunction. 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 (“Secretary Thornburgh”) is the Kansas Secretary of State.

            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.         For the purposes of this case, a closed primary allows only registered party members to vote in their party’s primary. An open primary is one where unaffiliated and independent voters can vote in a Republican or Democrat primary.

            7.         The Constitution and Bylaws (“Party’s Constitution and Bylaws”) of the Kansas Republican Party establishes the powers of the Kansas Republican Party Chairman.

            8.         Article IX of the Party’s Constitution establishes the manner in which the Constitution may be amended.

            9.         On May 14, 2004, Respondent Thornburgh wrote a letter to Kansas Republican Party Chairman Dennis Jones (“Chairman”). The letter informed the Chairman of a recently decided case, Beaver v. Clingman, 363 F.3d 1048 (10th Cir. 2004). The letter requested a response from the Chairman as to whether the Republican Party would open its primary election to members of other parties. The response deadline was June 10, 2004.

            10.       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.

            11.       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.

            12.       The Temporary Restraining Order was granted on June 16, 2004.

            13.       The Chairman was added to the lawsuit on or about June 17, 2004.

DISCUSSION

I.         PETITIONER ESTES HAS STANDING

            Standing is a question of whether Petitioner Estes has alleged such a personal stake in the outcome of the controversy as to warrant her invocation of jurisdiction and to justify exercise of the court's remedial powers on her behalf. See Harrison v. Long, 241 Kan. 174, 176 (1987). "Standing to sue" means that a party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Id. To have standing, Petitioner Estes must show that she personally suffered some injury and that there was some causal connection between the claimed injury and the challenged conduct. Id at 177.

            Petitioner Estes is a member of the Kansas Republican Party. She serves on the state committee and is chair of the fourth congressional district committee. Petitioner Estes has a personal stake in the outcome of the controversy because this Court’s decision will affect her duties as chair of the fourth congressional district committee.

            Petitioner Estes personally suffered some injury when the Chairman violated the rules of the Party.

II.       PETITIONER ESTES IS ENTITLED TO INJUNCTIVE RELIEF

            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). Injunctive relief may be ordered as a final judgment in an action and it may also be allowed as a provisional remedy. K.S.A. § 60-901. To warrant injunctive relief it must clearly appear that some act has been done, or is threatened, which will produce irreparable injury to the party seeking such relief. General Bldg. Contrs., L.L.C. v. Bd. of Shawnee County Comm'rs, 275 Kan. 525, 532 (2003).

            Petitioner Estes has been injured by the Chairman’s unilateral decision to establish an open primary. Petitioner Estes will continue to be injured unless this Court grants injunctive relief. Injunctive relief is granted for the following reason:

            A.        THE CHAIRMAN’S DECISION WAS WHOLLY WITHOUT MERIT

STANDARD OF REVIEW

            Political parties are voluntary associations for political purposes. Sims v. Daniels, 57 Kan. 552, 563 (1896). One who becomes a member assents, by his membership, to the constitution and rules of procedure adopted by such an association. See Cunningham v. Indep. Soap & Chem. Workers, 207 Kan. 812, 818 (1971). The relationship of voluntary associations with its members is governed by contract law. Id. It makes no difference whether the articles of agreement of the association are called a constitution, charter, bylaws or any other name. Id. Therefore, the cannons of contract law govern the analysis of the Party’s Constitution and Bylaws.  

ANALYSIS OF THE PARTY’S CONSTITUTION AND BYLAWS

            The interpretation or construction and meaning and legal effect of written instruments are matters of law exclusively for the court and not questions of fact. Federal Land Bank v. Krug, 253 Kan. 307, 311 (1993). 

            The cardinal rule of contract interpretation is that the court must ascertain the parties' intention and give effect to that intention when legal principles so allow. Ryco Packaging Corp. v. Chapelle Int'l, 23 Kan. App. 2d 30, 36 (1996).

            Parties are presumed to contract with reference to presently existing statutes, ordinances, and regulations. Thus, it is often said that all existing applicable or relevant and valid statutes, ordinances, regulations, and settled law at the time the contract was made become a part of the contract and must be read into it, unless a contrary intention is shown. Heartland Premier, Ltd. v. Group B & B, L.L.C., 29 Kan. App. 2d 777, 780 (2001).

            Terms of the contract are given their plain, general, and common meaning, and [ ] reasonable rather than unreasonable contract interpretations are favored. Parker v. Mid-Century Ins. Co., 25 Kan. App. 2d 329, 332 (1998).

            There is no substantial question of material fact in the interpretation of the Party’s Constitution and Bylaws. The question of law is whether the Chairman’s decision was inconsistent with the Party’s Constitution and Bylaws. Therefore, this Court must determine the parties’ intention when drafting and adopting the Party’s Constitution and Bylaws. This determination is crystal clear and overwhelmingly effortless.

            It is “settled law” that at the time the Party’s Constitution and Bylaws were amended in 2002, K.S.A.§ 25-3301(d) was in effect. K.S.A. § 25-3301(d) provides for a closed primary. Therefore, when the Party’s Constitution and Bylaws were enacted they were done so with the intention of retaining a closed primary. Additionally, the Chairman’s decision was inconsistent with Article II, paragraph (A) of the Party’s Constitution. Article II, paragraph (A) provides a formula that organizes the congressional district committees. An open primary would render the determination of the number of votes cast by Republican Party voters for statewide Republican candidates impossible. The inability to determine the number of Republican Party voters makes it impossible to organize the congressional district committee. The inability to organize the congressional district committee is wholly inconsistent with the Party’s Constitution.

            As titular head of the Party, the Chairman was required to defend the Party’s Constitution and Bylaws. Defending the Party’s Constitution and Bylaws necessarily required defending the closed primary. Therefore, the Chairman’s ill-advised decision was completely without merit. The Chairman proceeded in clear violation of the very rules he was elected to protect. This was a thinly-veiled attempt to bypass the party members he serves. In short, the Chairman not only violated the trust of his members, but the rules of his party.

            Perhaps the Chairman would have been better served by consulting the 105 years of guidance the Daniels Court provided rather than the guidance of rash and injudicious advisors:

Political Parties establish their own rules. They are governed by their own usages. Voters may form them, reorganize them, and dissolve them at their own will. The voters ultimately must determine every such question. The voters constituting a party are, indeed, the only body which can finally determine between contending factions, or contending organizations. The question is one essentially political, and not judicial, in its character. (Emphasis Added).

            If the Chairman wanted an open primary, he should have convened a party convention to change the Party’s Constitution and Bylaws. If the factions within the party did not want an open primary, they should not have elected the Chairman. It is as simple as that. This intra-party fighting should be decided at the precinct level and not by this Court. This Court will not be used to decide party squabbles. This question is truly political, and not judicial in character.

            Ultimately, the Chairman’s decision to open the August 3, 2004 primary is null and void. Therefore, the Secretary of State has no Party authority to establish an open primary. Any other basis of authority should be closely scrutinized.

III.     THE CONSTITUTIONALITY OF K.S.A. 25-3301(d) IS NOT AT ISSUE BECAUSE K.S.A. 25-3301(d) DID NOT INJURE THE PARTY

STANDARD OF REVIEW

            A state generally may not prevent the parties from taking internal steps affecting their own process for the selection of candidates. Beaver v. Clingman, 363 F.3d 1048, 1057 (10th Cir., 2004).

            A state generally may not restrict the ability of a political party to define the group of citizens that will choose its standard-bearer. Id.

            The freedom of association, at its core, protects against state regulations that: (1) preclude association, or (2) force inclusion of an unwanted person in a group. Id. at 1060-1061.

            The Constitution provides that states may prescribe the times, places and manner of holding elections for senators and representatives, and the court therefore recognizes that states retain the power to regulate their own elections. Burdick v. Takushi, 504 U.S. 428, 433 (1992). Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes. Id.

            The mere fact that a state's election system creates barriers tending to limit the field of candidates from which voters might choose does not of itself compel close scrutiny. Id. Instead, a more flexible standard applies. Id. at 434.

            A court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected by the U.S. Const. amend. I and XIV that the plaintiff seeks to vindicate against the precise interests put forward by the state as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights. Id.

            Under this standard of weighing the character and magnitude of the asserted injury against the constitutional rights sought to be vindicated, the rigorousness of the court's inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens U.S. Const. amend. I and XIV rights. Id. Thus, when those rights are subjected to "severe" restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance. Id.

            A state's interest in avoiding the possibility of unrestrained factionalism at a general election provides adequate justification for a restriction on a citizen’s ability to vote. See Id. at 439. The primary election is an integral part of the entire election process, and the state is within its rights to reserve the general election ballot for major struggles and not a forum for continuing intra-party feuds. Id.

            When weighing the character and magnitude of the injury against the asserted injury, this Court must also adhere to the following guidelines:  

            It is long-standing and well established that the constitutionality of a statute is presumed. Rogers v. Shanahan, 221 Kan. 221, 223 (1976). All doubts must be resolved in favor of its validity. Wichita v. Wallace, 246 Kan. 253, 257 (1990). Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. Wichita v. Wallace, 246 Kan. 253, 257 (1990).

            The propriety, wisdom, necessity and expediency of legislation are exclusively matters for legislative determination. Shanahan, 221 Kan. at 257-58. Courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute to be in the public interest; what the views of the members of the court may be upon the subject are wholly immaterial. Id. at 258. It is not the province nor the right of courts to determine the wisdom of legislation touching the public interest, as that is a legislative function with which courts cannot interfere. Id.

ANALYSIS

            This Court must carefully balance two vital interests: (1) the statute’s presumption of validity; and (2) the constitutional right of the Party to regulate itself. Therefore, the statute is valid unless the Party’s constitutional rights are injured and the State does not have a compelling interest in maintaining the injury.

            The Chairman claims the Party’s constitutional right to allow unaffiliated voters in its Primary is violated by K.S.A. § 25-3301(d). K.S.A. § 25-3301(d) allows only registered Republicans to vote in Republican Primaries and only registered Democrats in Democrat Primaries. In a somewhat peculiar move, the Chairman claims the statute injures the Party because its most important elected representative, the standard bearer, is being chosen by Republicans only.

            The Chairman claims the Party opened its Primary to unaffiliated voters when he sent a notification letter to Secretary Thornburgh. The Chairman claims the statute cannot restrict the Party’s ability to allow unaffiliated voters in the primary. The Chairman relies on his unilateral decision to include unaffiliated voters as the basis of his argument. That reliance is misplaced.

            It is well settled that this Court cannot restrict the ability of the Party to include unaffiliated voters in its August Primary absent a compelling State interest. K.S.A. § 25-3301(d) does not restrict the Party because the Chairman did not include unaffiliated voters in its Republican Primary. The Chairman’s decision is null and void. A null and void decision necessarily means that the Chairman did not authorize Secretary Thornburgh to open the August 3, 2004 primary to unaffiliated voters. The Chairman could then only be injured if the Party’s Constitution and Bylaws authorized an open primary.

            The Party’s Constitution and Bylaws do not explicitly allow or disallow unaffiliated voters in its Republican Primary. However, the Party ratified the Constitution and Bylaws with reference to the closed primary statute. (See Heartland Premier, Ltd., 29 Kan. App. 2d at 777). Furthermore, an open primary incapacitates the ability to organize the congressional district committee. An inability to organize the congressional district committee is wholly inconsistent with one of the fundamental purposes of the Party’s Constitution. Therefore, the Party implicitly preferred a closed primary.

            This Court firmly believes that “[p]arties enable citizens to participate coherently in a complex system of government, allowing for substantial number of popularly elected offices. They bring fractured and diverse groups together as a unified force, provide a necessary link between the distinct branches and levels of government, and provide continuity that lasts beyond terms of office. Parties also play important roles in encouraging active participation in politics, . . . holding politicians accountable for their actions, and encouraging debate and discussion of important issues.” See Gary D. Allison, Symposium: 1999-2000 Supreme Court Review: Protecting Party Purity in the Selection of Nominees for Public Office: The Supremes Strike Down California’s Blanket Primaries and Endanger the Open Primaries of Many States, 36 Tulsa L.J. 59 (2000). Therefore, this Court will not interfere with the internal selection process of the Party. This decision does not affect the power of the Party to regulate itself. The Party clearly wants only registered Republicans deciding the Party’s standard bearer and this Court must adhere to that wish. The Chairman’s null and void decision was clearly at odds with the Party’s wishes.

            The State is not required to show a compelling interest in retaining K.S.A. § 25-3301(d) because the Party has not suffered an injury.

IV.      THIS COURT WILL NOT DETERMINE THE AUTHORITY OF THE PARTY CHAIRMAN

            This Court declines Petitioner Estes’ invitation to judicially determine the general powers of the Chairman. That decision is best left to the Party. However, it should be noted that Chairman Jones dangerously overstepped his bounds by straining the very essence of the Party’s Constitution and Bylaws. The Chairman will undoubtedly face the consequences of governing by fiat.

V.        RESPONDENT THORNBURGH’S MOTION FOR SUMMARY JUDGMENT IS MOOT

             The Chairman’s decision is null and void, therefore, Secretary Thornburgh does not have the authority to count unaffiliated voters in the Republican Primary. Thus, the motion for summary judgment is moot.

VI.      SECRETARY THORNBURGH MUST UPHOLD THE CONSTITUTIONALITY OF K.S.A. 25-3301(d)

            This Court is mindful of the fact that this decision seemingly creates an unusual situation for the Kansas electorate. One party opted for an open primary and one party did not. This is similar to professional baseball’s decision to have a designated hitter in one league and not in the other. If the Republican Party wants to challenge the constitutionality of the statute, it must do so properly. This Court will not invalidate state law without an adequate challenge. Ultimately, however, Kansas voters will survive this ordeal, much like baseball fans across America.

CONCLUSION

            IT IS THEREFORE ORDERED THAT Petitioner Estes’ Petition for a Permanent Injunction enjoining 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 7th day of July 2004.

                                                                                                ______________________________

                                                                                                Charles E. Andrews, Jr.

                                                                                                District Court Judge