State v. Buser

302 Kan. 1, 2015 Kan. LEXIS 715
CourtSupreme Court of Kansas
DecidedJuly 1, 2015
DocketNo. 105,982
StatusPublished
Cited by6 cases

This text of 302 Kan. 1 (State v. Buser) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Buser, 302 Kan. 1, 2015 Kan. LEXIS 715 (kan 2015).

Opinion

ORDER

This is a criminal appeal in which the defendant is represented by Meryl Carver-Allmond, an attorney in the Capital Appellate Defender’s Office. This particular matter comes before the court on her Motion to Find Mandatory Application of K.S.A. 2014 Supp. 20-3301 Unconstitutional. The State filed no response to the motion.

Generally speaking, K.S.A. 2014 Supp. 20-3301 imposes deadlines for all state court decisions. In the context of this case, the statute’s first step is to direct all counsel after those deadlines have run to submit a joint request to the Supreme Court that a decision be entered “without further delay.” See K.S.A. 2014 Supp. 20-3301(c)(2). We recognize and echo the statute’s spirit, which aims to promote prompt judicial decisions. But, for the reasons explained below, we hold that section (c) violates the separation of powers doctrine embedded in the Kansas Constitution and is unconstitutional. Accordingly, we grant Carver-Allmond’s motion and relieve her of any purported duty to comply with its provision.

Separation of Powers and Standard of Review

We have long-recognized that the doctrine of separation of powers is inherent in the structure of the people’s constitution. See Coleman v. Newby, 7 Kan. 82, 87, 1871 WL 696 (1871) (Kansas Constitution creates three “distinct and separate” branches of government); State ex rel. Anderson v. Shanahan, 183 Kan. 464, 469, 327 P.2d 1042 (1958) (“our constitution is the fundamental law of the people.”) (citing Prohibitory-Amendment Cases, 24 Kan. 700, 707, 1881 WL 748 [1881]). The doctrine generally means that “ The legislature makes, the executive executes, and the judiciary construes the law.’ ” State ex rel. Morrison v. Sebelius, 285 Kan. 875, 883, 179 P.3d 366 (2008) (quoting Wayman v. Southard, 23 U.S. (10 Wheat) 1, 46, 6 L. Ed. 253 [1825]).

[2]*2Whether a statute is unconstitutional because it violates the separation of powers doctrine is for this court to determine. Because, as we reaffirmed just last year, “ ‘the final decision as to the constitutionality of legislation rests exclusively with the courts... [t]he judiciary’s sworn duty includes judicial review of legislation for constitutional infirmity.’ [Citation omitted.]” Gannon v. State, 298 Kan. 1107, 1159, 319 P.3d 1196 (2014); State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 452-53, 172 P.3d 1154 (2007) (declaring veteran’s preference statute constitutional); Petersilie v. McLachlin, 80 Kan. 176, 180, 101 P. 1014 (1909) (holding unconstitutional a legislative declaration of the truth of facts because an invasion of the province of the judicial branch); Auditor of State v. A.T. & S.F. Railroad Co., 6 Kan. 500, 506, 1870 WL 507 (1870) (“ ‘It is emphatically the province and duty of the judicial department to say what the law is.’ ”) (quoting Marbury v. Madison, 5 U.S. [1 Cranch] 137, 177, 2 L. Ed. 60 [1803]).

Analysis

K.S.A. 2014 Supp. 20-3301 became effective on July 1, 2014. The statute imposes deadlines for all Kansas state courts to issue decisions on all motions, bench trials, and appeals. Relevant to the pending motion, subsection (c) provides:

“(1) The supreme court shall render and file its decision on motions and appeals within 180 days after the matter is submitted for decision.
“(2) If the supreme court does not enter and file its decision on a submitted matter within 180 days of submission, all counsel shall, within 190 days after the matter is submitted for decision, file with tire court a joint request that such decision be entered without further delay. A copy of such request shall be sent to the chief justice and made available to the public.
“(3) Within 30 days after the filing of a joint request, the supreme court shall enter its decision or advise the parties in writing of the date by which the decision will be entered. A copy of such written advice shall be filed in the case, sent to tire chief justice and made available to the public.
“(4) In the event the supreme court fails to enter its decision or to advise the parties of an intended decision date as required by subsection (c)(3), all counsel shall tiren file a joint request with the chief justice to establish an intended decision date. A copy of such request shall be filed in tíre case and made available to the public.
[3]*3“(5) Upon receipt of a request under subsection (c)(4), the chief justice shall, after consultation with the justice or justices to whom the matter is assigned, establish a firm intended decision date by which die court’s decision shall be made. Such setting of a final intended decision date shall be in writing, filed in the case, served on the parties and made available to the public.”

Buser’s appeal challenges whether the 2011 amendments to the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., can be applied retroactively to his 2009 conviction without violating the Ex Post Facto Clause of the United States Constitution. See U.S. Const, art. 1, § 9. His case is among a trio heard the same day containing the same or a related federal ex post facto issue. Our lower courts are divided on the question. See State v. Buser, No. 105,982, 2013 WL1149655, at *6-7 (Kan. App. 2013) (unpublished opinion) (retroactive application permissible); State v. Redmond, No. 12-CR-2222 (Kan. 3d Jud. Dist. Ct. Aug. 20, 2013) (registration act violates Ex Post Facto Clause); Doe v. Thompson, No. 12-C-168 (Kan. 3d Jud. Dist. Ct. Jul. 15,2013) (registration act violates Ex Post Facto Clause).

After more than 180 days had passed since this court took Buser’s case under advisement following oral argument, Carver-Allmond filed the present motion. She contends we should reheve her of the statute’s express duty to file the “joint request that such decision be entered without further delay” under subsection (c)(2) because that provision violates the separation of powers doctrine. She relies on State ex rel. Morrison v. Sebelius, 285 Kan. 875, particularly emphasizing that subsection (c)(2) imperils her ethical obligations as an attorney under Rule 3.1 of the Kansas Rules of Professional Conduct (KRPC) (2014 Kan. Ct. R. Annot. 602). Like Carver-Allmond, appellate counsel in other cases have resisted compliance with this statute.

In Sebelius, we addressed the Funeral Privacy Act. Its “judicial review” provision directed the Attorney General to file a lawsuit to obtain “judicial determination of the constitutionality” of the Act. 285 Kan. at 882. The “judicial trigger” provision stated that most of the Act would not be operative until it was judicially held to be constitutional. Instead of filing the suit, the Attorney General [4]

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302 Kan. 1, 2015 Kan. LEXIS 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-buser-kan-2015.