Associated Press v. Sebelius

78 P.3d 486, 31 Kan. App. 2d 1107, 2003 Kan. App. LEXIS 925
CourtCourt of Appeals of Kansas
DecidedOctober 31, 2003
DocketNo. 90,069
StatusPublished
Cited by3 cases

This text of 78 P.3d 486 (Associated Press v. Sebelius) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Associated Press v. Sebelius, 78 P.3d 486, 31 Kan. App. 2d 1107, 2003 Kan. App. LEXIS 925 (kanctapp 2003).

Opinion

Per Curiam:

This is an action brought by The Associated Press, The Kansas Press Association, The Kansas Association of Broadcasters, and a group of Kansas newspapers (the Press) against Kathleen Sebelius, then incoming Governor of the State of Kansas, and an entity referred to by the parties as the Governor-Elect Transition Office (GETO). The Press claims Sebelius and GETO violated tire Kansas Open Meetings Act (KOMA), K.S.A. 75-4317 et seq., because Sebelius’ Budget Efficiency Savings Team (BEST) conducted meetings without providing notice and opening them to the public. In district court, the Press sought a temporary restraining order and temporary injunction, as well as declaratory judgment. The district court denied all relief.

Facts and procedural background

On November 5,2002, Sebelius was elected Governor of Kansas and her election was subsequently certified by the Kansas Secre[1109]*1109tary of State. On November 6, 2002, Sebelius began the creation of BEST by calling people whom she wanted to serve on the team. According to a press release, the purpose of BEST was to gather information and identify target areas on how to find efficiencies and savings in state government. BEST actually consisted of five groups, comprising a total of approximately 60 volunteers, with each group focusing on a separate area of state government. Group leaders were to report their preliminary findings to Sebelius at some point before her inauguration. Analysis, discussion, and recommendations based on those findings would be made in public meetings after her inauguration.

BEST leaders met for the first time on November 12, 2002. The separate groups began meeting thereafter on an informal basis. On November 18, 2002, John D. Hanna, on behalf of The Associated Press, requested notification of all BEST meetings in accordance with KOMA so that the press and the public might attend the meetings. This request was sent to Joyce Allegrucci, identified by the Press as a leader of the Sebelius transition team. On November 22, 2002, Sebelius’ chief of staff, Kathy Greenlee, denied Hanna’s request, maintaining BEST meetings did not fall under the requirements of KOMA.

On December 4, 2002, the Press filed a petition in Shawnee County District Court, alleging Sebelius and GETO violated KOMA by conducting BEST meetings without providing notice and opening them to the public. The Press sought a temporary restraining order, temporary injunction, and declaratory judgment. The defendants moved for dismissal of GETO as a party, arguing GETO was not a legal entity.

A hearing was conducted on December 12, 2002. The parties entered into the following stipulation of facts before the district court:

“(1) Kathleen Sebelius is Governor-Elect of the State of Kansas.
“(2) The Governor-Elect will be sworn into office on January 13, 2003.
“(3) Kathleen Sebelius is currently elected Kansas Commissioner of Insurance, an office she will hold until January 13, 2003.
“(4) Ms. Sebelius began creation of the Budget Efficiency Savings Team (BEST) on Nov. 6, 2002, by calling people she wanted to serve on BEST.
[1110]*1110“(5) BEST team leaders met for the 1st time on Nov. 12, 2002. Team members had not all been selected at that point.
“(6) The purpose of BEST before Ms. Sebelius is sworn is to gather information and identify target areas on how to find efficiency and savings in state government. Team leaders will report their preliminary findings to Ms. Sebelius at some point before inauguration. Analysis, discussion, and recommendations based on those findings will be made in public meetings after her inauguration.
“(7) BEST has no decision making authority.
“(8) BEST is comprised of approximately 60 people, excluding state employees assigned as staff to BEST pursuant to K.S.A. 75-134. The 60 members have been divided into five groups: agriculture and natural resources, economy, human services, infrastructure, and public safety.
“(9) At Ms. Sebelius’ request of Governor Graves, each BEST team has been assigned two or three state employees (12 total) who were assigned to the transition team by Governor Bill Graves pursuant to K.S.A. 75-134. They continue to receive their salary.
“(10) BEST team members receive no compensation or reimbursement for their time, mileage, or anything else, other than minor refreshments. (Lunches were paid out of private campaign funds.)
“(11) BEST teams have met on State property without payment to the State.
“(12) A majority of a quorum of the entire BEST membership has never met.
“(13) A majority of a quorum of members of individual BEST teams have met several times for the purpose of discussing the business and affairs of BEST. Two teams have met 3 times, and 3 teams have met 4 times.
“(14) A majority of a quorum of BEST teams have met in private for the purpose of discussing the business and affairs of BEST, declining to open its meetings to the public, stating that KOMA does not apply to BEST.
“(15) BEST has received requests for KOMA notice pursuant to K.S.A. 75-4318(b) from the news media. BEST has declined to provide such notice, stating that the KOMA does not apply to BEST.
“(16) An expressed intention for. the teams not to meet before January 13 does not malee the case moot.
“(17) The Governor-Elect has stated that she concedes that after her inauguration BEST falls under KOMA, and BEST will comply with KOMA openness and its notice requirements.”

On January 6, 2003, the district court filed a memorandum decision and order denying the request for a temporary injunction, finding there was not a substantial likelihood the plaintiffs would prevail on the merits of the case. Specifically, the district court found that neither Sebelius, GETO, nor BEST were subject to KOMA. Accordingly, the district court also denied the requested [1111]*1111declaratory relief. The district court did not address the defendants’ motion to dismiss GETO as a party.

Plaintiffs timely appeal the district court’s denial of declaratory relief. Defendants timely cross-appeal the district court’s refusal to dismiss GETO as a party to this action.

Is the case mootP

Initially, we must address whether a case or controversy still exists between the parties. The question of mootness arises due to the parties’ stipulation that after Sebelius’ inauguration, BEST would be subject to and would operate in accordance with KOMA. In this regard, the Press acknowledges the request for injunctive relief is moot.

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Bluebook (online)
78 P.3d 486, 31 Kan. App. 2d 1107, 2003 Kan. App. LEXIS 925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/associated-press-v-sebelius-kanctapp-2003.