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STATE EX REL. STEPHAN v. JOHNSON

July 6, 1990.

STATE OF KANSAS, ex rel. ROBERT T. STEPHAN, ATTORNEY GENERAL, Appellee,
v.
EVERETT L. JOHNSON, Appellant.



This is an appeal by Everett L. Johnson, respondent-appellant, from the district court's order that, because he is a tenured teacher at Wichita State University, he is not eligible to be a member of the State Board of Education.

On April 8, 1989, Richard Peckham, the popularly elected board member for District No. 10 of the Kansas State Board of Education (Board), resigned. Everett L. Johnson was appointed to the vacancy created by Peckham's resignation. Johnson is a tenured faculty member of Wichita State University and, as such, is an employee of the State of Kansas. He filed an oath of office on June 6, 1989, with the Kansas Secretary of State. He has, since that time, been acting as the Board member for the 10th District.

On May 26, 1989, the attorney general issued his opinion that K.S.A. 25-1904 precludes Johnson from serving on the Board because he is a state employee. The State of Kansas, through the attorney general, filed a petition in quo warranto in Shawnee County District Court, requesting that the court enter an order "ousting and removing" Johnson from his position on the Board. District No. 10 then held another convention and elected Gwendel A. Nelson as a Board member. The State amended its petition

[14 Kan. App. 2d 543]

      in quo warranto, adding Nelson as a party, alleging his election was null and void, and requesting the court to find that a vacancy existed in the Board position in District No. 10. Johnson filed an answer challenging the constitutionality of K.S.A. 25-1904. Nelson has voluntarily resigned from the office and is not a party to this appeal.

  Both Johnson and the State moved for summary judgment on the State's petition in quo warranto. The trial court granted the State's motion for summary judgment, finding K.S.A. 25-1904 constitutional. We agree.

  K.S.A. 1989 Supp. 60-256(c) allows summary judgment when there is no genuine issue of fact and one party is entitled to judgment as a matter of law. In this case there is no dispute regarding the relevant facts. The parties are in agreement that this is a proper case for summary judgment.

  Article 6, § 2(a) of the Constitution of the State of Kansas provides:
"The legislature shall provide for a state board of education which shall have general supervision of public schools, educational institutions and all the educational interests of the state, except educational functions delegated by law to the state board of regents. The state board of education shall perform such other duties as may be provided by law."
Article 6, § 3(a) provides:
"There shall be ten members of the state board of education with overlapping terms as the legislature may prescribe. The legislature shall make provision for ten member districts, each comprised of four contiguous senatorial districts. The electors of each member district shall elect one person residing in the district as a member of the board. The legislature shall prescribe the manner in which vacancies occurring on the board shall be filled."
  K.S.A. 25-1904 provides: "No state, school district or community junior college officer or employee shall be a member of the state board of education."

  The State contends that K.S.A. 25-1904 prohibits Johnson, a state employee, from holding a position on the Board. Johnson argues that K.S.A. 25-1904 is unconstitutional because it creates additional requirements for membership on the Board. He argues that, since the Board is created by the Kansas Constitution, the

[14 Kan. App. 2d 544]

      legislature cannot enact statutes creating additional requirements for its members.

  In determining the constitutionality of a statute, our Supreme Court has stated the following rules:
"`"This court adheres to the proposition that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done."' (Quoting State v. Huffman, 228 Kan. 186, Syl. ¶ 1, 612 P.2d 630 [1980])." Federal Land Bank of Wichita v. Bott, 240 Kan. 624, 628-29, 732 P.2d 710 (1987).
  Johnson relies on a 1926 case, Jansky v. Baldwin, 120 Kan. 332, 243 P. 302 (1926). In Jansky, the plaintiff was elected as county superintendent of public instruction in Republic County. The defendant, Baldwin, had run against Jansky in her bid for re-election and won. Jansky filed a petition in quo warranto, alleging Baldwin was not qualified because he had not taught for 18 months, which was a statutory requirement for the office. Baldwin responded that the statute was unconstitutional because the office was created by the Kansas Constitution and the statute increased the qualifications beyond those in the constitution. At that time, Article 6, § 1 of the constitution provided: "A superintendent of public instruction shall be elected in each county, whose term of office shall be two years and whose duties and compensation shall be prescribed by law." Kan. Const. art. 6, § 1 (R.S. 1923). The Kansas Supreme Court found that the constitution was silent on the qualifications for the position and, thus, the legislature was free to set eligibility requirements. 120 Kan. at 334. It stated the following general rule in reaching its decision:

  "This section of the constitution is silent as to requirements of eligibility. It is the rule that when the constitution of a state creates an office, and names the requirements of eligibility therefor, the legislature has no authority to make additional requirements, nor to provide that one may hold the office who does not have the constitutional requirements. When an office is created by an act of the legislature, that body has authority to name the terms of eligibility, and modify them at will. [Citations omitted.]" 120 Kan. at 333.

[14 Kan. App. 2d ...


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