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Kansas Supreme Court Selected Opinion Summary
State of Kansas ex rel. Paul J. Morrison, Attorney General, v. Hon. Kathleen Sebelius, Governor, Docket No. 98,691
March 11, 2008

Summaries and press releases are prepared by Ron Keefover, Office of Judicial Administration, Kansas Judicial Center, 301 West 10th, Topeka, KS 66612-1507 (785-296-2256), e-mail: keefoverr@kscourts.org.

RE: Appeal No. 98,961: State of Kansas ex rel. Paul J. Morrison, Attorney General, v. Hon. Kathleen Sebelius, Governor

The Supreme Court today unanimously ruled that the so-called judicial trigger provision in the 2007 Funeral Privacy Act is an unconstitutional violation of the separation of powers doctrine, but divided 6-1 on whether the provision could be severed from the rest of the legislation.

The Court filed today's decision as soon as it was ready, instead of waiting until the next scheduled decision filing date of March 28th to allow more time for legislators to address the issue again if they choose to do so.

The provision directed that the 2007 Act, which repealed earlier legislation setting time and place restrictions on protests at funerals, would become effective only after a state or federal court found the law constitutional. The legislation directed the attorney general to file suit to determine its constitutionality.

The Court said that the judicial trigger provision violated the separation of powers doctrine in two ways. "First, a lawsuit filed pursuant to the provision would not present an actual case or controversy. It would seek an advisory opinion, and a court would not have the judicial power to grant the remedy," Justice Marla J. Luckert wrote for the Court.

"Second, the provision purports to make the Kansas Supreme Court an advisor to the legislature on whether inoperative funeral protest provisions are facially constitutional and should be allowed to become operative. A court issuing such an opinion would usurp the legislature's duty to make a preliminary judgment on the constitutionality of inoperative legislative provisions," Justice Luckert wrote.

Regarding whether naming the governor as a defendant in the suit because that office has the ultimate authority to enforce the funeral picketing restrictions created a valid legal controversy, the Court determined that there would be "only a possibility of an enforcement duty arising at some unspecified future time."

"Currently and during a judicial trigger lawsuit, the question of her duty has and would have no more reality than a law school exam question," Justice Luckert wrote. "Even in the broadest reading of our mandamus cases, courts do not have jurisdiction over purely hypothetical questions associated with nonexistent duties."

The majority held that to sever the provision from the rest of the Act would constitute an improper delegation of legislative duties to the judiciary. "Even though we have determined the judicial trigger provision is unconstitutional, we cannot ignore its clear statement of legislative direction that the provisions would become operative if and when this court or a federal court determined the provisions were constitutional.

"Activation [of the 2007 legislation] under other circumstances would violate the express statement of the legislature, broaden the scope of the Act in a manner not authorized by the legislature, and violate the separation of powers doctrine," Justice Luckert wrote.

"Under either circumstance, this court cannot make the funeral protest provisions operative. If the power to decide when a statute is to become operative cannot be delegated, the issue must return to the legislature," the majority concluded.

However, Justice Lee A. Johnson, in a separate concurring and dissenting opinion, said he believes the judicial trigger provision could be stricken from the law without invalidating its remaining provisions.

Justice Johnson said he agrees that the judicial trigger in the legislation is unconstitutional, but he would sever it from the rest of the act. Given the stand-alone character of the remaining provisions of the Act, the expressed legislative intent is for the invalidated subsection to be severed, rather than for the entire Act to be invalidated. I would take the legislature at its word and sever the judicial trigger provision," he wrote.