IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 90,578
STATE OF KANSAS,
ex rel. PHILL KLINE, Attorney General,
Appellant,
v.
The UNIFIED BOARD of COMMISSIONERS
of the UNIFIED GOVERNMENT of
WYANDOTTE COUNTY/KANSAS CITY,
KANSAS,
and
the MAYOR and COUNCIL of the
CITY of EDWARDSVILLE, KANSAS,
Appellees.
SYLLABUS BY THE COURT
1. This court's review of a question of law is unlimited.
2. The State may preempt the constitutional authority of cities only in the manner prescribed in the Home Rule Amendment, Article 12, § 5 of the Kansas Constitution.
3. Article 12, § 5 of the Kansas Constitution does not authorize cities to act where the state legislature has precluded municipal action by clearly preempting the field with a uniformly applicable enactment. Generally speaking, where the legislature has not preempted the field with a uniformly applicable enactment, cities may exercise their home rule power by one of two means. Where there is a nonuniform legislative enactment that is in conflict with the action a city wants to take, a charter ordinance may be used to exempt the city from the legislative enactment. Where there is no legislative enactment in conflict with the local action, an ordinary ordinance will suffice.
4. Since the adoption of the Home Rule Amendment, it is not the manifestation of the intent to apply a statute uniformly to all cities that controls but rather whether the constitutional requirement of uniformity is, in fact, met.
5. In an action seeking an order declaring the charter ordinances adopted by the Unified Board of Commissioners of the Unified Government of Wyandotte County/Kansas City, Kansas and the Mayor and Council of the City of Edwardsville, Kansas, exempting those cities from the Sunday liquor sales prohibition of K.S.A. 41-712 to be invalid and void, the record is examined and it is held the district court did not err in concluding that the cities had the authority under Article 12, § 5 of the Kansas Constitution to adopt the ordinances exempting the cities from the statutory sales ban.
Appeal from Wyandotte district court; JOHN J. BUKATY, JR., judge. Opinion filed March 19, 2004. Affirmed.
Julene L. Miller, deputy attorney general, argued the cause, and Mary D. Feighny, assistant attorney general, and Phill Kline, attorney general, were with her on the briefs for appellant.
Henry E. Couchman, Jr., assistant counsel, Unified Government of Wyandotte County/Kansas City, Kansas, argued the cause, and Harold T. Walker, chief counsel, Unified Government of Wyandotte County/Kansas City, Kansas, and H. Reed Walker, city attorney, City of Edwardsville, Kansas, were with him on the brief for appellees.
Donald L. Moler, Jr., executive director, and Sandra Jacquot, legal counsel, were on the brief for amicus curiae League of Kansas Municipalities.
Rebecca S. Rice, of Topeka, was on the brief for amicus curiae Kansas Beer Wholesalers Association.
Alan Cobb, of Topeka, was on the brief for amicus curiae Kansas Association of Beverage Retailers.
Barkley Clark, Shook, Hardy & Bacon L.L.P., of Overland Park, was on the brief for amicus curiae City Attorneys Association of Kansas.
The opinion of the court was delivered by
ALLEGRUCCI, J.: This is a quo warranto and declaratory judgment action filed in district court by the State (on relation of the Attorney General) against the Unified Board of Commissioners of the Unified Government of Wyandotte County/Kansas City, Kansas, and the Mayor and Council of the City of Edwardsville, Kansas (Cities). The State sought an order declaring that charter ordinances passed by the Cities to exempt the Cities from the Sunday liquor sales prohibition of K.S.A. 41-712 were invalid and void. On cross-motions for judgment on the pleadings, the district court concluded that, because provisions of the Kansas Liquor Control Act, K.S.A. 41-101 et seq., are not uniformly applicable, the Cities had authority under the Home Rule Amendment to the Kansas Constitution, art. 12, § 5 to exempt the Cities from the Sunday liquor sales prohibition. The State appealed. On the State's motion, this court transferred the case from the Court of Appeals under K.S.A. 20-3017.
Four amici curiae briefs have been filed. Two amici urge this court to affirm the district court: The City Attorneys Association of Kansas (City Attorneys) and the League of Kansas Municipalities (League of Municipalities). One advocates reversing the district court's decision: The Kansas Association of Beverage Retailers (Beverage Retailers), a non-profit trade association made up of retail liquor stores located throughout Kansas. The fourth requests this court to find the phrase, "on Sunday" in K.S.A. 41-712 unconstitutional and to strike it from the statute: The Kansas Beer Wholesalers Association, a Kansas trade organization whose members are beer wholesalers licensed pursuant to the Kansas Liquor Control Act.
The sole issue raised in this appeal is whether the charter ordinances exempting the Cities from the Sunday retail liquor sales prohibition of K.S.A. 41-712 is a valid exercise of the home rule authority granted to cities by Article 12, § 5 of the Kansas Constitution.
The following facts are taken from the pleadings:
On November 5, 2002, an election was held for the purpose of voting on Charter Ordinance No. CO-1-02, which was entitled:
"A charter ordinance exempting the Unified Government of Wyandotte County, Kansas City, Kansas, in that portion of Wyandotte County defined as Kansas City, Kansas, from the provisions of K.S.A. 41-712 prohibiting alcoholic liquor sale on Sunday, and providing substitute and additional provisions on the same subject allowing alcoholic liquor sales on Sunday."
A majority of voters favored the charter ordinance to exempt Kansas City, Kansas, from the Sunday sales prohibition of K.S.A. 41-712. The charter ordinance became effective November 8, 2002. Several liquor retail establishments opened for business and made liquor sales on Sunday, November 10, 2002.
On August 26, 2002, the Mayor and Council of the City of Edwardsville, Kansas, passed Charter Ordinance No. 2002-1 to exempt Edwardsville from the Sunday sales prohibition of K.S.A. 41-712. No protest petition was filed to bring the charter ordinance to an election. It took effect November 12, 2002.
On November 21, 2002, the State filed a petition for quo warranto and declaratory judgment alleging that K.S.A. 41-712 is not subject to the charter ordinance provisions of the Home Rule Amendment to the Kansas Constitution, art. 12, § 5. The State sought an order of the district court declaring the Cities' charter ordinances invalid and void.
The parties filed cross-motions for judgment on the pleadings. In ruling on the parties' cross-motions for judgment on the pleadings, the district court resolved the case in the Cities' favor as a matter of law on the facts alleged and admitted. See K.S.A. 60-212(c). The State appealed.
This court's review of a question of law is unlimited. See Duarte v. DeBruce Grain, Inc., 276 Kan. 598, 602, 78 P.3d 428 (2003). At issue is K.S.A. 41-712, which provides: "No person shall sell at retail any alcoholic liquor . . . (1) On Sunday." The section as a whole provides:
"No person shall sell at retail any alcoholic liquor; (1) On Sunday; (2) on Memorial Day, Independence Day, Labor Day, Thanksgiving Day or Christmas Day; or (3) before 9 a.m. or after 11 p.m. on any day when the sale is permitted, except that the governing body of any city by ordinance may require closing prior to 11 p.m., but such ordinance shall not require closing prior to 8 p.m."
K.S.A. 41-712 is part of the Liquor Control Act, K.S.A. 41-101 et seq.
Subsections (a), (b), (c)(1), and (d) of the Home Rule Amendment to the Kansas Constitution, art. 12, § 5 provide:
"(a) The legislature shall provide by general law, applicable to all cities, for the incorporation of cities and the methods by which city boundaries may be altered, cities may be merged or consolidated and cities may be dissolved: Provided, That existing laws on such subjects not applicable to all cities on the effective date of this amendment shall remain in effect until superseded by general law and such existing laws shall not be subject to charter ordinance.
"(b) Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions except when and as the levying of any tax, excise, fee, charge or other exaction is limited or prohibited by enactment of the legislature applicable uniformly to all cities of the same class: Provided, That the legislature may establish not to exceed four classes of cities for the purpose of imposing all such limitations or prohibitions. Cities shall exercise such determination by ordinance passed by the governing body with referendums only in such cases as prescribed by the legislature, subject only to enactments of the legislature of statewide concern applicable uniformly to all cities, to other enactments of the legislature applicable uniformly to all cities, to enactments of the legislature applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction and to enactments of the legislature prescribing limits of indebtedness. All enactments relating to cities now in effect or hereafter enacted and as later amended and until repealed shall govern cities except as cities shall exempt themselves by charter ordinances as herein provided for in subsection (c).
"(c) (1) Any city may by charter ordinance elect in the manner prescribed in this section that the whole or any part of any enactment of the legislature applying to such city, other than enactments of statewide concern applicable uniformly to all cities, other enactments applicable uniformly to all cities, and enactments prescribing limits of indebtedness, shall not apply to such city.
. . . .
"(d) Powers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of self-government."
Subsections (c)(2), (3), and (4) of the Home Rule Amendment set out procedures governing charter ordinances.
As to the above, this court observed in Kansas City Renaissance Festival Corp. v. City of Bonner Springs, 269 Kan. 670, 673, 8 P.3d 701 (2000):
"In 1961, the home rule amendment to the Kansas Constitution took effect and empowered cities to determine their local affairs. Kan. Const. art. 12, § 5(b). The legislature retains power over statewide matters. Hence, home rule power does not authorize cities to act where the state legislature has precluded municipal action by clearly preempting the field with a uniformly applicable enactment. Generally speaking, where the legislature has not preempted the field with a uniformly applicable enactment, cities may exercise their home rule power by one of two means. Where there is a nonuniform legislative enactment that is in conflict with the action a city wants to take, a charter ordinance may be used to exempt the city from the legislative enactment. Kan. Const. art. 12, § 5(c). Where there is no legislative enactment in conflict with the local action, an ordinary ordinance will suffice."
The district court concluded that at least three sections of the Liquor Control Act do not apply uniformly to all cities:
"K.S.A. 41-301 differentiates between cities of the first and second class on the one hand and cities of the third class on the other as to who will be counted in an election to approve package sales of alcohol. K.S.A. 41-302 makes the same distinction when it comes to determining the number of signatures required on a petition to place the issue of retail sales of package liquor on the ballot. Also, K.S.A. 41-719(c)(3) differentiates among cities on the basis of population when it comes to allowing alcohol consumption in a drinking establishment on property owned by an airport authority.
"It matters not that the individual provision the defendants opted out of applies uniformly. If any of the provisions of the enactment (in this case, the Act) are not uniform in their application, the home rule amendment allows the opt out. City of Junction City v. Griffin, [227 Kan. 332, 607 P.2d 459 (1980)].
"In the face of such non-uniformity, the court must conclude that the defendants had the authority under the home rule amendment of the Kansas Constitution to charter out from under the statutory ban on Sunday sales of alcohol and allow such sales in their respective jurisdictions. Such a conclusion is in accord with the home rule amendment's mandate that it '. . . be liberally construed for the purpose of giving to cities the largest measure of self-government.'"
During oral argument on the motions for judgment on the pleadings in the district court, counsel for the State "essentially conceded that at least one portion of the Act did not apply uniformly." Having conceded that the usual test for the exercise of home rule favored the Cities, the State relied on the argument that K.S.A. 41-712 is not subject to home rule exemption because it is not applicable to cities. The district court rejected the State's argument that the threshold inquiry must be whether K.S.A. 41-712 is "applicable" to cities. The district court stated:
"Is it necessary that K.S.A. 41-712 be 'applicable' to a city before it can charter out from under its effect? The case of Brewster v. City of Overland Park, 233 Kan. 390, 661 P.2d 1240 (1983), cited by the State appears to answer in the affirmative. It seems to stand for the proposition that in determining the validity of a city's charter ordinance that opts out of a state enactment by virtue of the home rule amendment, the threshold inquiry for the court is whether the state enactment is 'applicable' to the cities. There, the court held that the City of Overland Park could not charter out from under a statute that granted a sales tax exemption to attorneys that pay a law library fee because that statute did not apply to cities. As a result, the court found it unnecessary to consider whether the exemption applied uniformly.
"Beyond that basic premise, however, the case offers little assistance to the courts in rendering a decision on a different set of facts. It mentions no criteria for a court to consider here as to whether the prohibition of Sunday sales of liquor is 'applicable' to cities or not. Accordingly, the decision must be limited to its facts."
On appeal, the State devotes most of its brief to its contention that the Cities cannot charter out of the prohibition on Sunday liquor sales because K.S.A. 41-712 is applicable to private conduct rather than to cities. The State does not contend that the Liquor Control Act is uniformly applicable to all cities. In support of its position that 41-712 does not apply to cities, the State notes that K.S.A. 41-712(1) prohibits a person from selling alcoholic liquor at retail on Sunday and that K.S.A. 41-102(t) defines person as "any natural person, corporation, partnership, trust or association." Although a municipal corporation may be included in that statutory definition of person, according to the State, a municipal corporation is not a person within the meaning of K.S.A. 41-712 because corporations cannot hold retail liquor licenses and only licensees can sell liquor at retail. See K.S.A. 2003 Supp. 41-311(b)(6); K.S.A. 41-104; K.S.A. 41-308(a).
The State relies on Brewster v. City of Overland Park, 233 Kan. 390, 661 P.2d 1240 (1983). At issue in Brewster was K.S.A. 19-1310 (Ensley 1981) (now K.S.A. 20-3127[e]), which provided: "All attorneys registered under this act shall not be liable to pay any occupation tax or city license fees levied under the laws of this state by any municipality." The court described the context of the statute:
"County law libraries are authorized to be created upon a vote of the majority of the attorneys practicing or residing in the particular county. If a county law library is so created, all practicing attorneys in the county must register and pay an annual registration fee. . . .
"The county law library statutes are located in Article 13 of Chapter 19 which concerns the functions of the clerk of the district court. The clerk has charge of the election, registration, and fees paid by attorneys as well as deducting the appropriate docket fees for the library's maintenance. Management of the library is vested in the district judges and representatives of the bar. The county law library is only peripherally a governmental function, although the county commission is required to provide space therefor or pay a sum in lieu thereof. See K.S.A. 19-1321 for this exception." 233 Kan. at 392.
The court decided the matter on a ground not raised by the parties:
"K.S.A. 19-1310 grants an exemption from any occupation tax or city license fee to attorneys registered for county law library purposes. K.S.A. 19-1310 does not forbid a county or city from imposing such a tax or fee, but merely grants an exemption therefrom to a class of individuals. Under such circumstances we conclude K.S.A. 19-1310 does not meet the threshold requirement of the Home Rule Amendment that an enactment from which a city wishes to exempt itself from be applicable to cities. Accordingly, the question of whether K.S.A. 19-1310 is uniformly applicable to cities is not reached." 233 Kan. at 392-93.
Brewster, unlike all other home rule cases, treats a legislative enactment as if it affects only private conduct or only governmental action. Examination of the statute at issue in Brewster shows that in fact it affected both. The statute could have been stated as a prohibition against cities collecting city-levied occupation taxes or license fees from the certain individuals, but it was stated the other way around. Barring the exercise of cities' home rule because the statute at issue happened to have been stated in terms of the exemption rather than the prohibition does not appear to be in keeping with the mandate of Article 12, § 5(d) of the Kansas Constitution that powers granted to cities by the Home Rule Amendment shall be liberally construed in order to give cities the largest measure of self-government. We agree with the trial court that Brewster is in a class of its own. Since it was decided in 1983, Brewster has never been cited in a published opinion. For that reason, the decision effectively has been limited to its unique facts and parties. We conclude Brewster should be so limited.
The State concedes that the Liquor Control Act refers to and affects cities but insists that the Act is not an enactment that applies to cities within the meaning of the Home Rule Amendment. The language that the State cites is in subsection (c)(1):
"Any city may by charter ordinance elect in the manner prescribed in this section that the whole or any part of any enactment of the legislature applying to such city, other than enactments of statewide concern applicable uniformly to all cities, other enactments applicable uniformly to all cities, and enactments prescribing limits of indebtedness, shall not apply to such city." Kan. Const. art. 12, § 5(c)(1).
The State quite literally construes the phrase, applying to such city, as any enactment that directly prohibits or allows some city action. Quite another interpretation is suggested by one author's remarks on subsection (c)(1):
"Note that a city can not by charter ordinance exempt itself from a statute which does not apply to it. If there is a statute which does not apply to a city because of population or other requirements or because it applies to a different class of cities, a charter ordinance may not be used to make it apply to the city." (Emphasis added.) Martin, Home Rule for Kansas Cities, 10 Kan. L. Rev. 501, 511 (1962).
The State's construction of the phrase, applying to such city, does not take into account either the background of special legislation for classes of cities against which the Home Rule Amendment was adopted or preservation in the amendment of classes of cities for certain purposes. Martin's construction of the phrase does take these things into account and, as a result, is more convincing. Placed in context, the phrase, applying to such city, seems certain to have been crafted to fit the legislature's practice of enacting special legislation for classes of cities. The Cities' view of the phrase, applying to such city, essentially is the same as Martin's but is stated in strictly practical terms as meaning that an enactment is effective within that city. An enactment that is effective within a city is one that applies to the class of cities to which it belongs.
The State contends that the history of the Home Rule Amendment shows that the amendment was intended to address statutes that apply to cities and their governments rather than statutes that apply to private persons. Before the Home Rule Amendment, cities could only exercise authority conferred by statute. Hence, the legislative agenda was heavily local in nature and much of the legislation was special legislation aimed at cities. The dual purpose of the Home Rule Amendment was to unburden the legislature of local matters and to empower cities. This sound statement of the purpose of the Home Rule Amendment, however, does not prove the State's point that the amendment does not permit cities to exempt themselves from legislation that addresses private conduct. In order to make the sound statement serve its argument, the State in its statement of the principle narrowed the empowerment of cities. According to the State, "[t]he Home Rule Amendment was designed to free the Legislature from having to address matters that could best be handled locally and to empower cities to opt out of special legislation applying to cities."
In making this argument the State ignores the plain language of the Home Rule Amendment. Cities' empowerment under the Home Rule Amendment is much broader than cities simply exempting themselves from certain legislation. Under the amendment, the legislature retained for itself only the power to govern incorporation of cities and the methods by which city boundaries may be altered, cities may be merged or consolidated, and cities may be dissolved. Kan. Const. art. 12, § 5(a). The legislature did not retain for itself the power to govern private conduct. Cities were empowered to determine local affairs, with only the specific exceptions identified in subsection 5(a), and local government including the levying of taxes, excises, fees, charges and other exactions, by means of ordinary and charter ordinances, except where the legislature has preempted a field by enacting legislation uniformly applicable to all cities. Kan. Const. art. 12, § 5(b).
The State argues that allowing cities to use charter ordinances to opt out of the prohibition on Sunday liquor sales will open the floodgates. If a few references to cities in the Liquor Control Act subject it to home rule exemption, the State warns, cities will be able to opt out of all provisions of the Act. Other legislative enactments, the warning continues, such as the Uniform Act Regulating Traffic, K.S.A. 8-1401 et seq., and the Campaign Finance Act, K.S.A. 25-4142 et seq., will be vulnerable to "such mischief." The proposition on which the State's argument is built, that legislative references to cities rather than uniform applicability control whether legislation is subject to home rule exemption, is not supported by the language of the amendment or case law construing it with the single exception of Brewster, which is confined to its facts and parties, as discussed earlier. The State's argument is not sound, but even if it were sound, the floodgates may be closed simply by the legislature's replacing special legislation with enactments that are uniformly applicable to all cities.
A licensee's violation of the Liquor Control Act "with respect to the . . . sale of alcoholic liquor or cereal malt beverage . . . shall be punishable: . . . (1) For a first offense, by a fine of not more than $500; and (2) for a second or subsequent offense, by a fine of not more than $1,000 or by imprisonment for not more than six months, or both." K.S.A. 41-901(a) and (b). The State asserts that this home rule case is unique because it involves the Cities decriminalizing an activity prohibited by the State. Thus, according to the State, there is no authority for the district court's conclusion that cities may charter out of criminal statutes in order to allow an activity which the statutes prohibit. In other words, the State seems to make the odd argument that the ruling in this case of first impression should be reversed because it is not based on precedent. Assuming for purposes of this discussion that the State correctly asserts that this is the first home rule case involving a statutory prohibition punishable by fine or imprisonment, the question would be whether the Home Rule Amendment distinguishes between legislative enactments with criminal penalties and those without criminal penalties. Examination of the Home Rule Amendment reveals nothing in its language that would support differential treatment of such enactments. Apart from the matters over which the legislature retained control in subsection (a)incorporation of cities and the methods by which city boundaries may be altered, cities may be merged or consolidated, and cities may be dissolvedno type of legislation is exempted from cities' exercise of home rule. Legislation involving the levying of taxes, excises, fees, charges, and other exactions is singled out in subsection (b) of the amendment, but only for the purpose of expressly permitting the legislature to establish classes of cities for the purpose of imposing limitations or prohibitions on the levying of taxes, excises, fees, charges, and other exactions and expressly permitting cities to exempt themselves from such enactments not uniformly applicable to all cities of the same class. If the legislature intends to preempt a field and exempt it from home rule, including matters enforced with penalty provisions, it has only to make such an enactment uniformly applicable.
The State argues that there is a division between matters of statewide concern and matters of local concern and that cities may not exercise home rule over matters of statewide concern. The State's premise is not generally accepted. One prominent author has stated: "No ordinance deals with an exclusively local matter and no statute regulates a matter of exclusively state-wide concern. Instead, the interests of the municipality and the state are nearly always concurrent." Clark, State Control of Local Government in Kansas: Special Legislation and Home Rule, 20 Kan. L. Rev. 631, 662, (1972). In City of Junction City v. Lee, 216 Kan. 495, 498-99, 532 P.2d 1292 (1975), this court rejected a similar argument in relation to weapons control, see K.S.A. 21-4201 et seq., stating:
"Weapons control is an area of cities' concern. That it is of concurrent state concern is no impediment to the exercise of authority by a city through ordinance so long as there is no conflict in terms with state legislation and the state legislature has not preempted the field. Answers to these latter questions determine whether an ordinance is 'subject to' state legislation within the meaning of the home rule amendment."
In Lee, this court also discussed whether criminal statutes are subject to home rule, stating:
"The further argument that by the enactment of our present criminal code the legislature has preempted for the state the entire field of criminal law was implicitly rejected in City of Lyons v. Suttle, 209 Kan. 735, 498 P.2d 9 (see dissenting opinion 209 Kan. 742-743, 498 P.2d 15). The statute relied upon for the theory of preemption is K.S.A. 21-3102, which states:
"'(1) No conduct constitutes a crime against the state of Kansas unless it is made criminal in this code or in another statute of this state. . . .'
"The foregoing is simply codification of prior case law holding there are no common law crimes in Kansasall crimes are statutory (see State v. Koontz, 124 Kan. 216, 218, 257 Pac. 944). Further negativing the notion our present criminal code was intended to preempt cities from that field are the several references to municipal courts in it and in our code of criminal procedure. For example, K.S.A. 21-3108(3), our former jeopardy statute, bars state prosecution under certain conditions if the defendant was prosecuted 'in the municipal or police court of any city of this state for a crime which is within the concurrent jurisdiction of this state. . . .' See also in our recently enacted municipal practice act provision for prosecution of non-traffic offenses (K.S.A. 1974 Supp. 12-4205)." 216 Kan. at 503.
Justice Schroeder dissented, and like the State in the present case, intimated that the sky was going to fall, stating: "In a far-reaching precedent the court by its decision is extending the Home Rule power of a city to legislate in the field of criminal law." 216 Kan. at 504. Lee was decided in 1975, and the sky has not fallen.
Liquor control, according to the State, is a matter of statewide concern. The State contends that Article 15, § 10 of the Kansas Constitution vests exclusive control of liquor in the State. That constitutional section provides: "The legislature may provide for the prohibition of intoxicating liquors in certain areas"; "may regulate, license and tax the manufacture and sale of intoxicating liquors, and may regulate the possession and transportation of intoxicating liquors"; and "may permit, regulate, license and tax the sale of intoxicating liquor by the drink in public places in a county where the qualified electors of the county approve. . . ." Kan. Const. art. 15, § 10. It provides for county-by-county determination and permits the legislature to regulate the liquor trade; it does not vest exclusive co