Cline v. Meis

905 P.2d 1072, 21 Kan. App. 2d 622, 1995 Kan. App. LEXIS 149
CourtCourt of Appeals of Kansas
DecidedNovember 3, 1995
DocketNo. 73,258
StatusPublished
Cited by6 cases

This text of 905 P.2d 1072 (Cline v. Meis) 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
Cline v. Meis, 905 P.2d 1072, 21 Kan. App. 2d 622, 1995 Kan. App. LEXIS 149 (kanctapp 1995).

Opinion

Rulon, J.:

Plaintiffs Vicky Cline, Diane Dexter, and Dave Compton appeal the district court’s finding that the actions of the Ness County election officer, defendant Ramona Meis, in striking several names from three recall petitions, was not arbitrary or capricious. We affirm in part, reverse in part, and remand the cause with directions.

The underlying facts are not controverted and are as follows:

Plaintiffs filed three recall petitions with the Ness County election officer seeking recall elections for three members of the U.S.D. No. 303 Board of Education: Robert Clouston, James Frank and Mark Kerr. After a review of the petitions, the election officer struck a number of signatures on each petition, which brought the total number of signatures below the 241 required.

The election officer struck the signatures for the following reasons:

• Address did not exactly match the voter registration card;
• name was printed when voter registration card signed in cursive;
• signature not dated;
• change of address within the same precinct but not registered at the time petition signed;
• person not a registered voter at time petition signed but registered prior to time petition reviewed for sufficiency; and
• name not signed by elector because of physical disability but signed by another.

STANDARD OF REVIEW

First, we must decide if the district court applied the correct standard of review.

[625]*625The right of the people to recall elected officials is provided by Article 4, § 3 of the Kansas Constitution, which reads: “All elected public officials in the state, except judicial officers, shall be subject to recall by voters of the state or political subdivision from which elected. Procedures and grounds for recall shall be prescribed by law.” “The Kansas Recall of Elected Officials Act, K.S.A. 25-4301 et seq., governs the procedure required for voters to exercise their right to recall public officials.” Cline v. Tittel, 20 Kan. App. 2d 695, 697, 891 P.2d 1137, rev. denied 257 Kan. 1091 (1995).

The issues presented are of first impression in Kansas and revolve around tíre interpretation of the statutes of the Kansas Recall of Elected Officials Act. The interpretation of a statute or constitution are questions of law, and this court’s scope of review is plenary. “When determining questions of law, this court is not bound by the decision of the district court.” State v. Donlay, 253 Kan. 132, 134, 853 P.2d 680 (1993).

As we understand, both parties agree that the issue before us is whether the election officer’s action in striking certain names from the petitions was arbitrary and capricious. Plaintiffs argue that in light of the constitutionally protected right, the determination of whether the administrative action is arbitrary and capricious is to be determined by liberally interpreting the statutes to carry out this fundamental right. The defendant argues that the decision of an election officer is presumed valid, and the burden of proving the action arbitrary and capricious falls on the party challenging the action. Here, the district court specifically held there was a distinction between the right to vote and the right to sign a recall petition. The court found that recall is controlled by a specific statute and, therefore, should be strictly construed. The court held that current law required the address shown on the recall petition to be the same as shown on the voter’s registration card and such provision should be strictly construed.

This record shows that to a large extent, defendant’s actions were guided by documents provided by the Secretary of State’s office in the form of a Kansas Election Law Handbook and a Petition Circulation checklist. Additionally, K.A.R. 7-28-1 provides standards by which an election officer is to determine the sufficiency of the [626]*626signatures on a petition. Initially, there is a question as to whether the Secretary of State’s regulations and instructions go beyond the authority provided by statute. In Kansas:

“The legal principle is well established that administrative agencies are creatures of statute and their power is dependent upon authorizing statutes; therefore, any exercise of authority claimed by the agency must come from within the statutes either expressly or by clear implication. There is no general or common-law power that can be exercised by an administrative agency. Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 378, 673 P.2d 1126 (1983); Woods v. Midwest Conveyor Co., 231 Kan. at 770; 1 Am Jur. 2d, Administrative Law § 70, p. 866.” State ex rel. Secretary of S.R.S. v. Fomby, 11 Kan. App. 2d 138, 141, 715 P.2d 1045 (1986).

Additionally, our Kansas Supreme Court has said:

“Where a state constitutional provision provides for the recall of public officials, recall is viewed as a fundamental right which the people have reserved to themselves. When the power of recall is a fundamental right, statutes governing the exercise of the power are to be liberally construed in favor of the ability to exercise it, and any limitations on that power must be stricdy construed. 63A Am. Jur. 2d, Public Officers and Employees § 190.” Unger v. Horn, 240 Kan. 740, 741, 732 P.2d 1275 (1987).
“ ‘A constitutional provision is not to be narrowly or technically construed, but its language should be interpreted to mean what the words imply to men [and women] of common understanding. [Citation omitted.] A constitution should not be interpreted in any refined or subtle sense, but should be held to mean what the words imply to the common understanding of men. [Citation omitted.] When interpreting the constitution, each word must be given due force and appropriate meaning.’ ” State ex rel. Stephan v. Parrish, 256 Kan. 746, 751, 887 P.2d 127 (1994) (quoting Colorado Interstate Gas Co. v. Board of Morton County Comm'rs, 247 Kan. 654, 660, 802 P.2d 584 [1990]).

We conclude the district court was incorrect in finding that the statutes regarding recall petitions should be interpreted narrowly. Unger clearly states that the applicable provisions are to be construed liberally and any restriction on such right is to be narrowly construed.

Article 43 of chapter 25 of the Kansas Statutes Annotated contains the provisions regarding recall of public officials. K.S.A. 25-4303

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905 P.2d 1072, 21 Kan. App. 2d 622, 1995 Kan. App. LEXIS 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cline-v-meis-kanctapp-1995.