IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 124,849
SCOTT SCHWAB,
Kansas Secretary of State,
in His Official Capacity,
and
MICHAEL ABBOTT,
Wyandotte County Election Commissioner,
in His Official Capacity,
Petitioners,
v.
The Honorable BILL KLAPPER,
in His Official Capacity as a District Court Judge,
Twenty-Ninth Judicial District,
and
The Honorable MARK SIMPSON,
in His Official Capacity as a District Court Judge,
Seventh Judicial District,
Respondents.
SYLLABUS BY THE COURT
1.
This court has concurrent discretionary jurisdiction over original actions filed in
either mandamus or quo warranto. Factors we will consider when deciding whether to
exercise discretionary jurisdiction include: whether the case presents issues of significant
public concern or matters of statewide importance; whether the petition presents purely
legal questions or requires extensive fact-finding; or whether there is a need for an
expeditious ruling.
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2.
Once a court decides to exercise its discretionary jurisdiction, it next must
determine whether the particular action (or each particular claim within the particular
action) lies in mandamus or lies in quo warranto (or both or neither). This is a question of
law. When deciding whether a particular action lies in mandamus or quo warranto, a
court must consider the limited scope and nature of mandamus or quo warranto actions in
conjunction with the relief sought by the petitioner. If the action does not lie, the petition
for mandamus or quo warranto relief must be denied.
3.
After a court has decided to exercise its discretionary jurisdiction and has
determined that the particular action lies in either mandamus or quo warranto, then the
court will consider and rule on the merits of the claim.
4.
An original action seeking to compel a district court to dismiss a pending case
when there is an adequate remedy on appeal does not lie in either mandamus or quo
warranto.
Original action in mandamus and quo warranto. Opinion filed March 4, 2022. Mandamus and quo
warranto denied.
Brant M. Laue, solicitor general, Kurtis K. Wiard, assistant solicitor general, Shannon Grammel,
deputy solicitor general, Dwight R. Carswell, deputy solicitor general, Jeffrey A. Chanay, chief deputy
attorney general, and Derek Schmidt, attorney general, were on the briefs for petitioners.
No briefs filed by respondents.
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The opinion of the court was delivered by
STEGALL, J.: On February 14, 2022, two lawsuits seeking declaratory and
injunctive relief were filed in the Wyandotte County District Court. The suits named as
defendants Kansas Secretary of State Scott Schwab and Wyandotte County Election
Commissioner Michael Abbott. The complaints ask the district court to rule that the
congressional reapportionment map known as "Ad Astra 2" and contained in Senate Bill
355 (2022) violates the Kansas Constitution. Specifically, plaintiffs allege Ad Astra 2 is
deliberately designed to elect Republicans to Congress at the expense of Democrats. In
addition to the partisan gerrymander allegations, the plaintiffs also allege the Legislature
racially gerrymandered the districts to intentionally dilute the minority vote. On March 1,
a third lawsuit based on these same facts was filed in Douglas County District Court
against Scott Schwab and Douglas County Clerk Jamie Shew. The plaintiffs in these
three lawsuits claim violations of Article 5, section 1 of the Kansas Constitution and of
sections 1, 2, 3, 11, and 20 of the Kansas Constitution Bill of Rights.
On February 18, 2022, the Kansas Attorney General, on behalf of Schwab and
Abbott, filed in this court a petition for mandamus and quo warranto relief seeking
dismissal of the two lawsuits pending before respondent, Wyandotte County District
Court Judge Bill Klapper. The Attorney General subsequently filed an amended petition
on March 3, 2022, adding the Douglas County action and seeking dismissal of the lawsuit
pending before the respondent, Douglas County District Judge Mark Simpson.
DISCUSSION
This court has original jurisdiction in proceedings in mandamus and quo warranto
as provided by Article 3, section 3 of the Kansas Constitution. "This jurisdiction is
plenary and may be exercised to control the actions of inferior courts over which the
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Supreme Court has superintendent authority." State ex rel. Stephan v. O'Keefe, 235 Kan.
1022, 1024-25, 686 P.2d 171 (1984). Our original jurisdiction is discretionary and
concurrent with that of lower courts. Ambrosier v. Brownback, 304 Kan. 907, 909, 375
P.3d 1007 (2016).
Determining whether to exercise discretionary jurisdiction is the first duty of a
court when considering a petition in mandamus or quo warranto. In exercising our
discretion to accept jurisdiction over such claims, we consider several factors, including:
whether the case presents issues of significant public concern or matters of statewide
importance; whether the petition presents purely legal questions or requires extensive
fact-finding; or whether there is a need for an expeditious ruling. See, e.g., Board of
Johnson County Comm'rs v. Jordan, 303 Kan. 844, 850, 370 P.3d 1170 (2016) (great
public importance and concern); Stephens v. Van Arsdale, 227 Kan. 676, 682, 608 P.2d
972 (1980) (speedy adjudications of questions of law; matter of statewide concern);
Mobil Oil Corp. v. McHenry, 200 Kan. 211, 239, 436 P.2d 982 (1968) (speedy
adjudication to expedite official business).
The validity of a legislatively enacted congressional reapportionment scheme is
a matter of great public concern and statewide importance. See generally Harris v.
Anderson, 196 Kan. 450, 412 P.2d 457 (1966) (assessing the validity of a state House of
Representatives redistricting scheme under this court's original jurisdiction). Indeed,
"drawing lines for congressional districts is one of the most significant acts a State can
perform to ensure citizen participation in republican self-governance." League of United
Latin American Citizens v. Perry, 548 U.S. 399, 416, 126 S. Ct. 2594, 165 L. Ed. 2d 609
(2006).
And we recognize these questions warrant a speedy resolution. Time is of the
essence in resolving the issues presented in this case as the 2022 election cycle is fast
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approaching. The candidate filing deadline for the primary election is June 1, 2022. See
K.S.A. 2020 Supp. 25-205. The primary election is scheduled for August 2, 2022. K.S.A.
25-203(a). And the general election will be held on November 8, 2022. K.S.A. 2020
Supp. 25-101(a). Expeditious confirmation of congressional district lines benefits
candidates seeking to run in congressional districts, state officials responsible for
administering congressional elections in those districts, and constituents who need to
know the congressional district in which they will reside.
But we also recognize the plaintiffs have made claims in the pending district court
actions that may require fact-finding by the lower court. This can weigh against the
discretionary exercise of jurisdiction See Oberhelman v. Larimer, 110 Kan. 587, 590,
204 P. 687 (1922) ("The defendants request that, if their motion to quash be denied, they
be allowed time in which to answer. This indicates that questions of fact would be
presented. This court is not as well equipped to try questions of fact as the district court.
The remedy by mandamus in this court is not as complete as the remedy provided by law
in matters of this kind.").
Considering all these factors together, we conclude that exercising our
discretionary jurisdiction over this petition is in the interests of all concerned.
Having decided to exercise our discretionary jurisdiction, we turn to the second
question we must address—have the petitioners properly stated a claim for relief under
either mandamus or quo warranto? In the past, we have often framed this second question
as asking whether an action in the nature of either quo warranto or mandamus "lies" to
grant the petitioner the relief sought. See, e.g., Lauber v. Firemen's Relief Assn. of Salina,
195 Kan. 126, 129, 402 P.2d 817 (1965) ("Mandamus lies only to enforce a right in a
clear-cut case."); State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 656, 367 P.3d
282 (2016) ("[Q]uo warranto generally will not lie when another plain and adequate
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remedy exists."); Stephens v. Van Arsdale, 227 Kan. 676, 682, 608 P.2d 972 (1980)
("Mandamus will not lie to compel a public officer to perform an unauthorized act.");
Bank Commissioner v. Stewart, 113 Kan. 402, 404, 214 P. 429 (1923) ("Mandamus will
lie to compel an officer of a corporation to deliver all books, papers, documents, and
property to his successor in office, or to the corporation when the officer has ceased to act
as such.").
Whether a particular action lies in either mandamus or quo warranto is a question
of law. See State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 443, 172 P.3d
1154 (2007). Where the relief sought is not of the kind available in an action for quo
warranto or mandamus, the action is said not to "lie." This is a legal determination and
not subject to the discretion of this court.
We recognize our prior decisions may have caused confusion by blurring the
distinction between these two questions—one discretionary question (whether to exercise
jurisdiction) and one legal question (whether the petition states a valid claim for relief
under our original jurisdiction). Today we state clearly that these are distinct inquiries. A
court may choose to exercise its discretionary jurisdiction in an original action only to
conclude—as a matter of law—that the specific petition before it does not lie in
mandamus or quo warranto. And if an action does not lie in mandamus or quo warranto,
the petition must be denied. This court does not have discretion to reach the merits of
such a claim simply because the question presented is one of statewide importance,
significant public concern, or there is a compelling need for an expeditious and
authoritative ruling on an important legal question. Language in our prior decisions
suggesting otherwise (or interpreted as suggesting otherwise) is expressly disapproved.
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Whether a particular action lies in either mandamus or quo warranto turns on the
limited scope of the original actions in question—either quo warranto or mandamus—and
on the type of relief sought in the petition. Mandamus is "a proceeding to compel some
inferior court, tribunal, board, or some corporation or person to perform a specified duty,
which duty results from the office, trust, or official station of the party to whom the order
is directed, or from operation of law." K.S.A. 60-801. A "writ of mandamus seeks to
enjoin an individual or to enforce the personal obligation of the individual to whom it is
addressed," and "rests upon the averred and assumed fact that the respondent is not
performing or has neglected or refused to perform an act or duty, the performance of
which the petitioner is owed as a clear right." O'Keefe, 235 Kan. at 1024. "The writ will
not ordinarily issue unless there has been a wrongful performance or actual default of
duty." 235 Kan. at 1024. Moreover, mandamus relief does not lie if there is an adequate
remedy at law. 235 Kan. at 1025.
For mandamus to lie in this case, petitioners must show that a mandatory,
nondiscretionary duty requires Judge Klapper and Judge Simpson to dismiss the cases.
No such mandatory duty exists, and no clear legal duty has been violated. See Lauber,
195 Kan. at 129 ("[B]efore an order of mandamus may be issued it must be found that a
clear legal right has been violated."). Lower courts consider questions of jurisdiction and
justiciability all the time. The aggrieved party may appeal from such rulings as a matter
of course. And here, Judges Klapper and Simpson have not even had the opportunity to
rule. Petitioners' claim does not lie in mandamus.
Petitioners also seek quo warranto relief under K.S.A. 60-1202(1), which permits
a quo warranto action to be brought in this court "[w]hen any person shall usurp, intrude
into or unlawfully hold or exercise any public office." "An action in quo warranto
demands that an individual or corporation show by what authority it has engaged in a
challenged action." Kelly v. Legislative Coordinating Council, 311 Kan. 339, 344, 460
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P.3d 832 (2020). Unlike mandamus, "a writ of quo warranto is not an order directing the
defendant to perform or to cease performing a certain act; rather, it is an order directing
the defendant to show by what authority he or she is acting." 55 C.J.S., Mandamus § 5.
For quo warranto relief to lie, petitioners must allege that Judge Klapper and Judge
Simpson are exercising unlawfully asserted authority. But of course, even if either district
judge issues an incorrect ruling, they would not be acting unlawfully. They would merely
be in error, which can be readily remedied through a process of appellate review.
Petitioners' claim does not lie in quo warranto.
In deciding as a matter of law that petitioners' claims do not lie in either
mandamus or quo warranto, we emphasize that we do not reach, consider, or take any
position on the merits of the underlying claims. We recognize that consideration of those
claims may be properly before us in the ordinary course of an ordinary appeal at some
time in the near future. To that end—and in view of the limited time available and the
importance of the resolution of these questions—we encourage the parties in the pending
district court litigation to work with the district courts to expeditiously resolve the legal
questions and to present a timely appeal, should any party desire appellate review.
The amended petition in mandamus and quo warranto is denied.
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