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
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
"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
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 )." Federal Land Bank
of Wichita v. Bott, 240 Kan. 624, 628-29, 732 P.2d 710
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.