IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS

DIVISION TWELVE

STATE OF KANSAS, ex rel.

PHILL KLINE, ATTORNEY GENERAL,

                                            Plaintiff, 

v.                                                                                                Case No. 05-C-1050

THE HONORABLE KATHLEEN SEBELIUS,

GOVERNOR OF THE STATE OF KANSAS,

 in her official capacity, et al.,

                                            Defendants.

MEMORANDUM DECISION AND ORDER

           The Petition in this case was filed by the Plaintiff on August 16, 2005. On October 19, 2005, the Defendants filed a Motion to Dismiss. The Plaintiff filed a Response to the Motion to Dismiss on November 30, 2005, and the Defendants filed a Reply brief on December 15, 2005. Oral Argument was presented by counsel for the parties on January 9, 2006. Thus, since the issue presented has now been fully briefed and argued by the parties, the Court deems the Motion to Dismiss to be submitted for ruling.

I. NATURE OF THE CASE

           In this case, the Plaintiff seeks to obtain a Writ of Mandamus and Quo Warranto against the Defendants. The State of Kansas brings this action through Phill Kline, Attorney General of the State of Kansas. The Attorney General has specially appointed Representative Lance Kinzer, in his capacity as an attorney licensed to practice law in the State of Kansas, to represent him in this lawsuit. The Defendants are Kathleen Sebelius, the Governor of the State of Kansas; Duane Goossen, the Secretary of the Kansas Department Administration; and, Bob Day, the Director of the Division of Health Policy and Finance. Each Defendant has been sued in his or her official capacity.

II. PLAINTIFF’S CONTENTIONS

           The Petition states that this lawsuit was filed “upon the specific order of the Kansas House of Representatives” and alleges that it “places before this Court a controversy involving multiple branches of the State Government and, by implication, the relationship between monetary expenditures of the State of Kansas and the status quo ante of the federal Medicaid program.” The Plaintiff requests that the Court issue a Writ of Mandamus establishing the meaning of the term “men” in Section 1 of the Kansas Constitution; finding that the expenditure of any state funds as reimbursement for abortions without due process of law constitutes a violation of Section 1 of the Kansas Constitution; holding that the continued expenditure of state funds as reimbursement for abortions is unlawful and without force of law; and, ordering that the Defendants immediately cease further expenditures of state funds for reimbursement for abortions. In addition, the Plaintiff seeks an order Quo Warranto preventing the Defendants from exercising authority to expend any state funds for abortions.

III. DEFENDANTS’ CONTENTIONS

           In the Motion to Dismiss, the Defendants contend that the Petition should be dismissed pursuant to K.S.A. 60-212(b) for failure to state a claim upon which relief may be granted pursuant to the “Supremacy Clause” found in Article VI of the United States Constitution. The Defendants further contend that since the Kansas Legislature voluntarily elected to participate in the federal Medicaid program, the State of Kansas must comply with all of the federal laws and regulations related to the Medicaid program. Specifically, the Defendants alleged that the State of Kansas is required to comply with the terms of the Hyde Amendment, which prohibits Medicaid funds to be expended for abortions except for those which are medically necessary to save the life of the mother and those arising out of incidents of rape or incest. The Defendants further allege that the Plaintiff improperly seeks to obtain an Advisory Opinion from the Court. In addition, the Defendants allege that any issues involving the Kansas Crime Victims Compensation Act or the Kansas Health Wave program have not been properly brought before this Court by the Plaintiff. In the alternative, although the Defendants seek dismissal of this action in its entirety, they also contend that Defendant Goossen and Defendant Day are not proper parties to this lawsuit.

IV. PROCEDURAL HISTORY

           The filing of this lawsuit was initiated by House Resolution No. 6003, which was adopted by the Kansas House of Representatives during the 2002 Legislative Session. In accordance with the provisions of K.S.A. 75-702, the Attorney General may be “required by the governor or either branch of the legislature [to] appear for the state and prosecute or defend . . . in any cause or matter, civil or criminal, in which the state may be a party or interested or when the constitutionality of any law of this state is at issue and when so directed shall seek final resolution of such issue in the supreme court of the state of Kansas.” House Resolution No. 6003 was co-sponsored by more than 40 members of the House of Representatives, including members from both the majority and minority parties.

           Specifically, House Resolution No. 6003 stated that a “controversy” existed as a result of “the use of matching funds in, and the administration of, the medicaid program and the use of state facilities in the termination of the lives of innocent human beings” in violation of Section 1 of the Kansas Bill of Rights. (It should be noted that no issue has been presented in this case regarding “state facilities” being used for abortions.) As authorized by K.S.A. 75-702, House Resolution No. 6003 directed the Attorney General to bring an action in the Kansas Supreme Court “and such other courts as may be warranted” against the Governor and the Secretary of the Kansas Department of Social and Rehabilitation Services. Although the Resolution also directed that a lawsuit was to be filed on or after February 1, 2003, this action was not filed in the District Court of Shawnee County, Kansas until August of 2005.

V. ANALYSIS AND LEGAL CONCLUSIONS

           A.        Standard of Review

           In deciding the Motion to Dismiss filed by the Defendants, the Court will apply the law to the factual allegations contained in the Petition to determine whether a valid claim has been stated upon which relief may be granted. In reviewing the Petition, the Court must view the factual allegations in a light most favorable to the Plaintiff. See Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 882, 885-86, 9 P.3d 1251 (2000). However, the Court is not required to accept the legal contentions contained in the Petition as true. See Duckworth v. Kansas City, 243 Kan. 386, Syl P.2, 758 P.2d 201 (1988). If the Plaintiff has stated a valid claim, this lawsuit must go forward. However, if the Plaintiff has failed to state a valid claim for relief against the Defendants named in this lawsuit, dismissal of this action is justified as a matter of law. See Bruggeman v. Schimke, 239 Kan. 245, 247, 718 P.2d 635 (1986), (quoting Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, Syl. P. 2, 620 P.2d 837 (1980)).

           B.       Mandamus and Quo Warranto

           K.S.A. 60-801 provides:

Mandamus is a proceeding to compel some . . . person to perform a specified duty, which duty results from the office . . . of the party to whom the order is directed, or from operation of law. ( Emphasis added.)

           Mandamus “is available for the purpose of compelling the performance of a clearly defined duty, by a person or corporation whose duty arises out of a trust relationship, or a public, or corporate responsibility.” (Emphasis added.) Gard, Kansas Code of Civil Procedure, Article 8-Mandamus, p. 126 (2003). “It is only where there is an abuse of discretionary power, or an arbitrary refusal or failure to perform a clear-cut legal duty that the remedy will lie.” (Emphasis added.) Id. at p.127, (citing Artesian Valley Water Conservation Ass’n v. Division of Water Resources, 174 Kan. 212, 255 P.2d 1015 (1953); and, Gray v. Jenkins, 183 Kan. 251, 326 P.2d 319 (1958)). Thus, mandamus may only be used to compel a public official to perform a specified and clear-cut legal duty of his or her office.

           The Kansas Supreme Court has held that “an order in mandamus is a discretionary one and does not issue as a matter of right, nor unless the defendant’s legal duty is clear, and if it is not clear, the writ should not issue, the burden of showing the right to relief being on the plaintiff.” Willis v. Kansas Highway Patrol, 273 Kan. 123, 126, 41 P.3d 824 (2002), (quoting State ex rel. Frizzell v. Paulsen, 204 Kan. 857, Syl. 2, 465 P.2d 982 (1970)). “Mandamus does not support a right that is in substantial dispute. A party must be clearly entitled to the order sought before mandamus is proper.” 273 Kan. at 127, (quoting Link, Inc. v. City of Hays (Link II), 268 Kan. 372, 375, 997 P.2d 697 (2000)).

           Similar to mandamus, relief in the nature of quo warranto is discretionary. See Sedlak v. Dick, 256 Kan. 779, 786, 887 P.2d 1119 (1995), (quoting State ex rel. Stephan v. Carlin, 229 Kan. 665, 666, 630 P.2d 709 (1981)). Quo warranto actions may be brought if a “person shall usurp, intrude into or unlawfully hold or exercise any public office.” 256 Kan. at 786, (quoting K.S.A. 60-1202(1)). Both mandamus and quo warranto have been used to obtain rulings on constitutional issues for guidance of public officials in actions involving specified duties and actual controversies. See State ex rel. Stephan v, Finney, 251 Kan. 559, 567, 836 P.2d 1169 (1992) and Sedlak v. Dick, 256 Kan. at 786.

           C.       The Federal Supremacy Clause and Preemption 

           “Federal preemption is based on the Supremacy Clause of Article VI of the United States Constitution. Black’s Law Dictionary 1197 (7th ed. 1999), defines preemption as ‘the principle (derived from the Supremacy Clause) that a federal law can supersede or supplant any inconsistent state law or regulation.’” State ex rel. Kline v. Unified Board of Comm’ns, 277 Kan. 516, 529, 85 P.3d 1237 (2004). See also Rose v. Via Christi Health Sys. Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005). Article VI of the United States Constitution specifically provides that the “Constitution and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Article VI further provides that “the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the Several States, shall be bound by Oath or Affirmation, to support this Constitution. . . .” Thus, all of the officials of the State of Kansas are bound by their oaths to follow the Constitution and laws of the United States of America.

           In addition, the State of Kansas is required to follow the decisions of the United States Supreme Court which interpret the United States Constitution and the laws of the United States of America. See Trinkle v. Hand, 184 Kan. 577, 579, 337 P.2d 665 (1959); and, Murray v. State, 226 Kan. 26, 34-35, 596 P.2d 805 (1979). “A fundamental principle of the [United States] Constitution is that Congress has the power to preempt state law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). If an actual conflict exists between state and federal law, the laws of the United States of America control and the state law is without effect. See Hartford Accident & Indem. Co. v. American Red Ball Transit Co., 262 Kan. 570, 576, 938 P.3d 1281 (1997), (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992)).

           In 1833, Professor Joseph Story explained the Supremacy Clause of Article VI as follows:

                      [I]n the exercise of concurrent powers, if there is a conflict between the laws of the Union and the laws of the states, the former being supreme, the latter must of course yield. The possibility, nay the probability, of such a conflict was foreseen by the framers of the constitution, and was accordingly expressly provided for. If a state posses a law inconsistent with the Constitution of the United States it is a mere nullity. If it passes a law clearly within his own constitutional powers, still if it conflicts with the exercise of a power given to congress, to the extent of the interference its operation is suspended; for in a conflict of laws, that which is supreme must govern. Therefore, it has often been adjudged, that if a state law is in conflict with a treaty, or an act of congress, it becomes ipso facto inoperative to the extent of the conflict. (Emphasis added.)

Story, Commentaries on the Constitution of the United States, Book III, Chapter V., Section

201, p. 151 (1833-Reprinted 1987).

           The provisions of state constitutions are also subject to federal supremacy. See Romer v. Evans, 517 U.S. 620 (1996). “The preemption doctrine applies to [federal] regulations as well as statutes.” Americare Properties, Inc. v. Dept. of S.R.S., 241 Kan. 607, 611-12, 738 P.2d 450 (1987). See also Fidelity Federal Savings & Loan Ass’n v. De La Cuesta, 458 U.S. 141, 153 (1982). Thus, as a matter of law, the Constitution, statutes and regulations of the United States “are supreme; and they control the constitutions and laws of the states, and cannot be controlled by them. . . .” Story, at Section 202, p. 151.

           D.       The Medicaid Program

           Title XIX of the Social Security Act, also known as the Medicaid Act (42 U.S.C. 1396 et seq.) provides for the appropriation of federal funds to states to furnish medical assistance to those who otherwise could not afford to pay for health care services. “The Medicaid program was enacted in 1965 . . . as a cooperative federal-state program designed to provide health care to needy individuals.” Williams v. Kansas Department of Social and Rehabilitation Service, 258 Kan. 161, 164, 899 P.2d 452 (1995), (quoting Hines v. Shalala, 999 F. 2d 684, 686 (2d Cir. 1993)). “Although participation in the Medicaid program is entirely optional, once a state elects to participate, it must comply with the requirements of Title XIX.” Harris v. McRae, 448 U.S. 297, 301 (1980).

            The provisions of 42 U.S.C. 1396 also require any state which decides to participate in the Medicaid program to submit to the United States Secretary of Health and Human Services a “comprehensive written statement . . . describing the nature and the scope of its Medicaid program and giving assurance that it will be administered in conformity with the specific requirements of title XIX, the regulations in . . . Chapter IV [of the Code of Federal Regulations], and other applicable official issuances of the Department. 42 C.F.R. 430.10 (1987)” Americare Properties, Inc. v. Whiteman, 257 Kan. 30, 34, 891 P.2d 336 (1995), (quoting Pinnacle Nursing Home v. Axelrod, 928 F.2d 1306 (2d Cir 1991)). Moreover, 42 U.S.C. 1396c authorizes the Secretary of Health and Human Services to stop or suspend federal reimbursement to any state which fails to comply with the laws and regulations related to the Medicaid program.

           “Kansas has elected to participate in the Medicaid program.” 258 Kan. at 165. When the Kansas Legislature enacted K.S.A. 39-708c in 1973, it constituted a voluntary decision by the State of Kansas to comply with the federal statutes and regulations regulating the Medicaid program. Although K.S.A. 39-708c has been amended numerous times since 1973, the Kansas Legislature has never made a decision to “opt-out” of the federal Medicaid program. Thus, so long as the State of Kansas continues to participate in the Medicaid, it has a duty to comply with the federal laws and regulations governing the program.

           E.       The Alleged Controversy Presented

           In the first paragraph of the Petition filed in this case, the Plaintiff specifically sets forth a statement of the alleged “controversy” between the parties. He states that the “controversy” involves “the relationship between monetary expenditures of the State of Kansas and the status quo ante of the federal Medicaid program.” (Emphasis added.) Similarly, House Resolution No. 6003 has been attached to and made a part of the Petition by the Plaintiff. House Resolution No. 6003 states:

A controversy now exists when the pregnancy of a woman constitutes the presence of a second person in order to qualify for Medicaid while at the same time allowing such funds to be expanded for the purpose of terminating the life of that ‛second person’ as well as the lives of the preborn human beings. Through the use of matching funds in, and the administration of the Medicaid program and the use of state facilities in the termination of the lives of innocent human beings, the state has become a direct party in violating Section I of the Bill of Rights of the Constitution of Kansas. . . . (Emphasis added.)

2002 House Resolution No. 6003, p.2, lines 19 to 27.

           In addition, House Resolution No. 6003 specifically “directed” the Attorney General “to bring action in mandamus and quo warranto against the governor as chief executive officer of the state and the secretary of social and rehabilitation services as administrative officer of the Medicaid program in Kansas. . . .” (Emphasis added.) Id. at p.2, line 43 to p.3, line 3. Moreover, the justification given by the Plaintiff in the Petition for filing suit against the Secretary of the Kansas Department of Administration and the Director of the Division of Health Policy and Finance as substitutes for the Secretary of the Kansas Department of Social and Rehabilitation Services is that they allegedly oversee the use of Kansas state funds “as reimbursement for Medicaid abortions.” (Petition, p.4, para. 20 and p.5 para. 23.) Thus, notwithstanding the valiant attempt by Plaintiff’s counsel to save this lawsuit from dismissal by attempting to switch the focus of the Court to other state programs, both the Petition and House Resolution No. 6003 clearly declare that the alleged “controversy” between the parties relates to the use of state funds for abortions under the federal Medicaid program.

           F.       The Hyde Amendment

           The United States Congress enacted the “Hyde Amendment” to prohibit Medicaid funds from being spent on “any abortion” except for those which are “the result of an act of rape or incest” or those involving “a physical disorder, physical injury, or physical illness . . . caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.” P.L. 108-447, 118 Stat. 2809, 3163, Sections 507 and 508 (2004). In Harris v. McRae, 448 U.S. at 310, the United States Supreme Court found that “the withdrawal of federal funding under the Hyde Amendment would operate to relieve the State of that obligation for those abortions which federal reimbursement is unavailable.” Thus, the only abortions which are at issue in this lawsuit are those still covered by Medicaid pursuant to the Hyde Amendment.

           In Hern v. Beye, 57 F.3d 906, 912-913 (10th Cir. 1995), (cert. den. sub. norm, Weil v. Hern, 516 U.S. 1011 (1995)), the United States Court of Appeals for the Tenth Circuit (which includes the State of Kansas), held that states which have elected to participate in the Medicaid program are required by federal law to provide reimbursement for abortions to the limited extent authorized by the Hyde Amendment. Moreover, as Plaintiff’s counsel candidly admits in his Response to the Motion to Dismiss, “it is beyond cavil that many courts have ruled that the Hyde Amendment requires states to fund Medicaid abortions where the pregnancy was the result of rape or incest, or where there is danger of death to the pregnant woman unless an abortion is performed.” See 57 F.3d at 911-912. Thus, if the State of Kansas desires to continue to participate in the Medicaid program, it will also required by the Supremacy Clause to comply with the provisions of the Hyde Amendment, as amended; and, any state law which is inconsistent with the Hyde Amendment will be ineffective to the extent that it conflicts with federal law.

           G.      Health Wave and the Kansas Crime Victims Compensation Act

           Since it is beyond legitimate debate that the Supremacy Clause of the United States Constitution requires the Defendants to comply with the Hyde Amendment, the Plaintiff has attempted to re-define the nature of the alleged “controversy” between the parties from that which was expressly set forth in the Petition and in House Resolution No. 6003. In his Response to the Motion to Dismiss, the Plaintiff asks this Court to shift the focus of this lawsuit from the federal Medicaid program to the Kansas Crime Victims Compensation Act and to the Kansas Health Wave program. However, since these programs were not mentioned in either the Petition or House Resolution No. 6003, and the Plaintiff has not sought to amend the allegations set forth in the Petition pursuant to K.S.A. 60-215, the Court finds that issues related to the Kansas Crime Victim’s Compensation Act and the Health Wave Program have not been properly asserted in this case.

           Notwithstanding, even if the Plaintiff had properly included issues related to these programs in the Petition, the Defendants named in this lawsuit are not the public officials responsible for overseeing the Kansas Crime Victims Compensation Act. Unlike the Arkansas Crime Victims Reparations Act (A.C.A. 16-90-703 et seq.) which the Plaintiff cites in his Response, it is not the Governor who appoints the members of the Crime Victims Compensation Board in Kansas. Rather, pursuant to K.S.A. 74-7303(a), the Kansas Legislative has placed the Kansas Crime Victims Compensation Board under the jurisdiction of the Attorney General himself.

           As such, if there is a “controversy” regarding how the Board is spending state funds (which this Court has no reason to suspect), it is the Attorney General - not the Defendants - who would be required to defend a mandamus or quo warranto action. Moreover, if the Kansas Crime Victims Compensation Act is funded entirely by the State of Kansas as the Plaintiff alleges, the Kansas Legislature has the power to amend the statutory language to prohibit the use of state funds for abortions if it so desires. See Webster v. Reproductive Health Services, 492 U.S. 490, 590 (1989). Regardless, a possible “controversy” involving expenditures under the Kansas Crime Victims Compensation Act does not justify a mandamus or quo warranto action being brought against the Defendants named in this lawsuit.

           Similarly, nothing in the Kansas Health Wave Act, K.S.A. 38-2001 et seq., justifies an action against these Defendants. Like the Medicaid program, Health Wave is also part of a federal program in which the State of Kansas has voluntarily elected to participate. See 42 U.S.C. 1397aa, et seq. and K.S.A. 38-2001 et seq. The Kansas Health Wave Program was enacted for the purpose of providing children who live in low-income households with an opportunity to be covered by health insurance. Under the program, the State of Kansas contracts with a managed care organization which, in turn, contracts with those who provide health care to the children. Just as the Hyde Amendment controls the funding of abortions in Medicaid cases, the federal laws relating to the Health Wave program also limits funding for abortions to those which arise out of incidents of rape, incest and/or where the life of the mother is in danger. See 42 U.S.C. 1397ee(c)(7).

           Although the Supremacy Clause of the United States Constitution also applies to the Health Wave program, it is also important to recognize that K.S.A. 38-2003 contains language which is very similar to the Hyde Amendment regarding the funding of abortions. Specifically, K.S.A. 38-2003(b), which was enacted by the Kansas Legislature in 1998, provides that the “limitations established [regarding expenditures for abortions pursuant to the Health Wave program] shall not apply to an abortion: (1) If the pregnancy is the result of an act of rape, aggravated indecent liberties with a child or incest; or (2) if necessary to save the life of the pregnant woman.” Moreover, it is the Secretary of the Kansas Department of Social and Rehabilitation Services, not the Defendants named in this lawsuit, who is charged with overseeing the Health Wave program. See K.S.A. 38-2001 et seq. Thus, the Court finds that the Plaintiff has failed to state a claim against the Defendants named in this case relating to either the Health Wave program or the Kansas Crime Victims Compensation Act.

           H.      The Dalton Decision

           The Plaintiff contends in his Response to the Motion to Dismiss that the case of Dalton v. Little Rock Family Planning Services, 516 U.S. 474 (1996) is “most instructive” in this case. In Dalton, the United States Supreme Court considered the constitutionality of Amendment 68 to the Arkansas Constitution. Amendment 68 states:

1. Public Funding. No public funds will be used to pay for any abortion, except to save the mother’s life.

2. Public Policy. The policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.

3. Effect of amendment. This amendment will not effect contraceptives or require an appropriation of public funds.

Ark. Const. amend. 68.

           The Dalton Court found that Amendment 68 of the Arkansas Constitution was preempted by the Hyde Amendment with respect to Medicaid funding to pay for abortions arising out of incidents of rape or incest. Specifically, the United States Supreme Court upheld the well-settled rule of law that under the preemption doctrine “state law is displaced only ‘to the extent that it actually conflicts with federal law.’” 516 U.S. at 476, (citing Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190, 204 (1983); Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88, 109 (1992); and, Exxon Corp. v Hunt, 475 U.S. 355 (1986)). This is the same principle of law which is discussed above in the quotation from Story, Commentaries on the Constitution of the United States, Book III, Chapter V., Section 201, p. 151.

           Certainly, under the preemption doctrine it is preferred that courts should “enjoin only the unconstitutional applications of a statute [or state constitution] while leaving other applications in force, See United States v. Raines, 362 U.S. 17, 20-22 (1960), or to sever its problematic portions while leaving the remainder intact, United States v. Booker, 543 U.S. 220, 227-229 (2005).” Ayotte v. Planned Parenthood of Northern New England, 546 U.S. , Slip Opinion, p. 7 (January 18, 2006). Thus, a law “may . . . be declared invalid to the extent that it reaches too far, but otherwise left intact.” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985); See also Tennessee v. Garner, 471 U.S. 1 (1985); United States v. Grace, 461 U.S. 171, 180-183 (1983).” 543 U.S. , Slip Opinion at p. 7.

           Although the Dalton decision does not help the Plaintiff overcome the hurdle of the Supremacy Clause in this case, both Dalton and the recent Ayotte decisions are indeed instructive regarding the extent to which a state may place limitations on the use of state funds for abortions. For example, as discussed during Oral Argument the Kansas Legislature is free to propose an amendment to the Kansas Constitution similar to Amendment 68 of the Arkansas Constitution if it so desires. Nevertheless, to the extent that such limitations conflict with the provisions of the United States Constitution, federal statutes or federal regulations, they would be invalid to the extent that they actually conflict with federal law.          I.        Ripeness and Advisory Opinions

           The Plaintiff further contends in his Response to the Motion to Dismiss that his Petition “raised a question regarding the possibility that a government official is acting in contravention of state constitutional limits.” (Emphasis added.) However, mandamus and quo warranto actions require much more than a “possibility that a government official” may have acted in a particular manner. Rather, as indicated above, the Plaintiffs must allege that a particular official violated a legal duty which is “specified,” “clearly identified” or “clear-cut” in order to state a claim for relief under the mandamus or quo warranto statutes. Thus, the mere “possibility” that some unnamed government officials may have violated a duty or acted contrary to the Kansas Constitution is clearly not sufficient to state a claim upon which relief may be granted.

           Moreover, the Plaintiff contends that this Court should issue a writ of mandamus and order quo warranto against the Defendants since it is “entirely possible” that the Hyde Amendment may change in the future. “An issue is not ripe for adjudication when there is only the possibility of a future controversy between the parties.” Leavenworth Plaza Associates , L.P. v. L.A.G. Enterprises, 28 Kan. App. 2d 269, 271, 16 P.3d 314 (2000). Of course, it is always “possible” that Congress may change the law in some unknown way at some unknown point in the future. Likewise, due to the recent changes on the United States Supreme Court, it is “possible” that at some point in the future the United States Supreme Court may decide to revisit its prior opinions on the issue of abortion or that it may decide to return more control to state legislatures to make the various public policy decisions related to abortion. At this point, however, one can only speculate about what the future may or may not bring. Thus, the Court finds the Plaintiff’s action to be premature and not ripe for decision.      

           In his Response to the Motion to Dismiss, the Plaintiff also places a great deal of reliance on the case of Associated Press v. Sebelius, 31 Kan. App. 2d 1107, 78 P.3d 486 (2003). Unlike the present case, the Shawnee County District Court was presented with an actual “controversy” between the parties in the Associated Press case regarding the issue of whether the Kansas Open Meetings Act applied to the Transition team of then Governor-Elect Kathleen Sebelius. By the time the case reached the appellate level, however, Governor Sebelius had already taken office and the Kansas Court of Appeals found that the case was “clearly moot” as to her. 31 Kan. App. 2d at 1111. Nevertheless, since the case had presented an actual “controversy” when it was originally filed at the District Court level and since the legal issue was “capable of repetition” each time the State of Kansas holds an election for Governor, the Kansas Court of Appeals understandably exercised its discretion to address the merits of the case. Id.

           Although the Court will not separately discuss all of them in this Memorandum Decision and Order, it has reviewed each of the cases cited in the Response filed by the Plaintiff and mentioned during Oral Argument. From a review of these cases, it is apparent that each involved an actual “controversy” between the parties. For example, in Wilson v. Sebelius, 276 Kan. 87, 72 P.3d 553 (2003), there was a dispute regarding which political party had the power to nominate a new Shawnee County Treasurer pursuant to K.S.A. 19-504. In this case, however, the Court does not find that the Petition presents an actual “controversy” between the parties. Although the issues presented in this case are of “public importance” and should be continued to be debated in the appropriate forums, the Court must resist the temptation to offer an advisory opinion in this case.

           J.        Section 1 of the Kansas Bill of Rights

           Section 1 of the Kansas Bill of Rights provides: “All men are possessed of equal and

inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” The language of Section 1 was adopted in 1859, nine (9) years prior to the ratification of the Fourteenth Amendment to the United States Constitution. Unlike many other provisions of the “Wyandot Constitution,” Section 1 was not taken from the Ohio Constitution nor was it taken from the United States Constitution. Rather, Section 1 of the Kansas Bill of Rights was based on the Declaration of Independence, which states “that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and pursuit of Happiness.”

           During the debate regarding Section 1 of the Kansas Bill of Rights held at the Kansas Constitutional Convention, the Chairman of the “Preamble and Bill of Rights” Committee, William Hutchinson, stated:

This is the first section of our bill of rights. What is a bill of rights? It is a mere declaration of the natural rights of man. And in summing up these rights, it is not to be supposed that we will come down to any narrow, contracted conception of them- that we will use the pocket compass of legislation-but it is to be supposed that we will look on the bright side- will take a fair and independent view of the rights of man, aside from the restrictions of law and civil government of any character . . . It is but a declaration of those natural rights of man that have been acknowledged from the foundation of this government. (Emphasis added.)

Drapier, Proceedings and Debates of the Kansas Constitutional Convention, pp. 281-282

(1859).

           It was a young lawyer from Hiawatha, Samuel A. Kingman, who proposed the version of Section 1 of the Kansas Bill of Rights which was ultimately adopted by the delegates to the Constitutional Convention convened at Wyandot on July 18, 1859. Mr. Kingman would later become Chief Justice of the Supreme Court of the State of Kansas. In support of his proposed, Mr. Kingman spoke these words to the delegates:

I hope that the section which I hold in my hand will be adopted. By leave of the convention I will read it:

“All men are possessed of equal and inalienable natural rights, among which are those of life, liberty and pursuit of happiness.”

These terms, Mr. President, are fixed in the minds of the American people- they have become traditional . . . We all cling to old truths, and I love the very forms of expression in which old truths have been presented. I dislike to change any old truth from the forms of language . . . and put into new and doubtful phraseology; and our national Declaration of Independence is of this class of truth. That Declaration of Rights forms a part of our political creed, from which no man can extricate himself; and I do not wish to change the clothing of these ideas. It is the feeling that makes a man who has long read one book - as the Bible or Blackstone - value it a hundred fold above its intrinsic value . . . I say again, sir, I love these old forms. They are, it seems to me, as the political Bible of every citizen of the United States . . . I think the amendment I have read, in these old terms, is broad enough. It will show no man’s prejudices, and it is broad enough for all to stand upon. (Emphasis added.)

Id. at p. 283.

           Following debate regarding the issue of whether Section 1 of the Kansas Bill of Rights should also address the fugitive slave law, the language proposed by Mr. Kingman was passed by a vote of 42 in favor and six against. Id. at 285.

           From a review of the history of Section 1 of the Kansas Bill of Rights, it is clear that it was intended to be a statement of the “natural rights” to which all human beings have been endowed. Sir William Blackstone, who was well-known as a premier authority on the subject of “natural law” to the Founding Fathers of the United States as well as to the Founding Fathers of Kansas, recognized that “life” is an “inherent right” given “by nature in every individual, and exists even before the child is actually born.” Blackstone, Commentaries on the Law, Book I, The Rights of Persons-Chapter 1, p. 70. However, Blackstone also recognized that “every man, when he enters into society, gives up a part of his natural liberty . . . and obliges himself to conform to those laws, which the community has thought proper to establish. Otherwise, there would be no security to individuals in any of the enjoyments of life.” Id. at p. 69.

           In Schaake v. Dolley, 85 Kan. 598, 118 P.80 (1911), the Kansas Supreme Court,

in addressing Section 1 of the Kansas Bill of Rights, found:

                      If the benefits of organized society are to be enjoyed at all authority must reside somewhere to consider the conflicting claims and interests of the individual and of the community to which he belongs and prescribe the rules of good neighborhood. The power to do this is legislative power, and it must necessarily be adequate to meet the need for which it is instituted. The result of the declaration of the bill of rights quoted above is not a prohibition against just restrictions . . . in the interest of the public good. (Emphasis added.)

Id.

           In Schaake, Justice Burch explained the role of Section 1 of the Kansas Bill of Rights as follows:

                      It is a political maximum addressed to the wisdom of the legislature and not a limitation upon its power. It is not a mere “glittering generality” and can not be entirely disregarded in any valid enactment . . . but it lacks the definiteness, certainty and precision of a rule . . . and consequently can not . . . furnish a basis for the judicial determination of specific controversies. (Emphasis added.)

Id.

            Justice Burch went on to state:

                      Many things, indeed, which are contained in the bill of rights . . . are not, and from the very nature of the case can not be, so certain and definite in character as to form rules for judicial decisions; and they are declared rather as guides to the legislative judgment than as marking an absolute limitation of power. (Emphasis added)

85 Kan. at 602, quoting Cooley, Const. Lim., 7th ed., p.245.

             As such, it is clear that Section 1 of the Kansas Bill of Rights was not intended to “furnish a basis for the judicial determination of specific controversies” as the Plaintiff desires. Rather, Section 1 provides the Kansas Legislature with guidance when attempting to balance the rights of individuals and the interests of the community. Thus, since courts must “avoid making unnecessary constitutional decisions” (Wilson v. Sebelius, 276 Kan. at 96 (2003)), it would not be proper for this Court to use Section 1 of the Kansas Bill of Rights as a basis to determine the alleged “controversy” presented in this case.