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BLEVINS v. HIEBERT

July 13, 1990.

LESLIE W. BLEVINS, SR., Appellant,
v.
NANCY HIEBERT, WARREN RHODES, and DAVID HOPPER, individually and in their capacity as the BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, KANSAS; and DENNIS CONSTANCE, MICHAEL RUNDLE, MICHAEL AMYX, SANDY PRAEGER, and ROBERT SCHUMM, individually and collectively as members of the CITY OF LAWRENCE BOARD OF CITY COMMISSIONERS, Appellees.



The opinion of the court was delivered by

This civil action for an injunction comes before the court upon rehearing. Pursuant to an order issued January 30, 1990, we withdrew our previous opinion in Blevins v. Hiebert, 245 Kan. 646, 783 P.2d 1260 (1989), and granted rehearing to examine further the full scope of our decision. Blevins appeals a district court order granting summary judgment to the Board of County Commissioners of Douglas County and denying an injunction.

The facts of this case have been fully set forth in Blevins v. Hiebert, 13 Kan. App. 2d 318, 770 P.2d 486 (1989). Due to the complexity of the case, however, the facts are here presented again in some detail.

On June 8, 1985, the Lawrence Journal World newspaper reported that the Douglas County Commissioners were considering a bond issue to help construct a by-pass highway south of Lawrence. County consultants publicly stated only $1,010,000 of the $4,000,000 needed in general obligation bonds for the by-pass could be issued without a mandatory vote of Douglas County voters. Subsequently, the Kansas Attorney General issued an opinion at the request of the County, which stated that the County plan to issue general obligation bonds for construction of the by-pass without a public vote was permissible under its home rule authority.

  Thereafter, the Douglas County Board of County Commissioners adopted several ordinary resolutions on August 14, 1985, through use of its home rule powers. Resolutions No. HR 85-8-2 and No. 85-41 authorized construction of the highway system and the issuance of general obligation bonds to finance the highway. Resolution No. 85-43 authorized the issuance of $12,595,000 in General Obligation Refunding and Improvement Bonds, Series 1985, to refund the County's bonded debt and to pay for certain public improvements within the County, including $4,000,000 for construction of the by-pass highway. The bonds were issued and

[247 Kan. 4]

      the transaction closed on August 29, 1985. In 1986, the 1985 bonds were refunded and construction for the trafficway refinanced by the issuance of $13,590,000 in General Obligation Refunding and Improvement Bonds, Series 1986. Douglas County and the City of Lawrence adopted a joint resolution on September 1, 1987, concerning the construction of the South Lawrence Trafficway.

  Leslie W. Blevins, Sr., a resident of Douglas County and property owner in the City of Lawrence, filed a lawsuit against Douglas County, the City of Lawrence, and individual members of their commissions on August 28, 1987. He asked for temporary restraining orders and for permanent injunctions preventing the City and County from proceeding with the South Lawrence Trafficway without submitting the proposal to a vote. Specifically, he asked that the County be restrained from spending the money from the bonds it had issued for the by-pass construction and that the City be restrained from taking steps to issue general obligation bonds for its share of the by-pass costs without submitting the issuance of the bonds for voter approval.

  Douglas County filed a motion for summary judgment, and the City of Lawrence filed a motion to dismiss. The district court granted the City's motion to dismiss on February 4, 1988. The court found that Blevins had standing to sue and ruled that Douglas County issued the general obligation bonds properly under its home rule authority. Furthermore, the district court determined that Blevins' claim was barred by the doctrine of laches.

  On February 16, 1988, Blevins filed a motion for a new trial, to alter or amend the judgment, and for reconsideration. This motion alleged that conflict of interest grounds existed which should have prevented the County from asserting the equitable defense of laches, and Blevins requested that the laches decision be amended. The district court denied Blevins' motion on April 28, 1988. Blevins appealed the district court's judgment and denial of his post-trial motion.

  The Court of Appeals held the County legally issued the general obligation bonds under its ordinary home rule powers pursuant to K.S.A. 19-101a. Blevins v. Hiebert, 13 Kan. App. 2d at 321. The court found that K.S.A. 68-580 et seq. is a permissive statute and not the only method available for the County to authorize

[247 Kan. 5]

      construction of a highway. 13 Kan. App. 2d at 320-21. On the issue of the dismissal of the City of Lawrence, the court found that the issue had not been briefed on appeal and was therefore waived or abandoned. 13 Kan. App. 2d at 322. The Court of Appeals found no abuse of discretion by the district court in its finding that Blevins' claim was barred by laches, nor did it find an abuse of discretion by the district court in denying Blevins' post-trial motions attacking the laches determination. 13 Kan. App. 2d at 322-23. We granted review.

  In this case the parties agree that the Dillon rule of municipal law (see State, ex rel., v. City of Topeka, 175 Kan. 488, Syl. ¶ 2, 264 P.2d 901 [1953]) was abolished by home rule. Thus, municipalities were freed from dependence upon the state legislature for local legislation. See Claflin v. Walsh, 212 Kan. 1, 6-7, 590 P.2d 1130 (1973); Missouri Pacific Railroad v. Board of Greeley County Comm'rs., 231 Kan. 225, 643 P.2d 188 (1982) (county home rule powers). The parties also concede that legislative silence on a subject no longer prevents local government action. There is also accord on the principle that home rule is available to cities and counties in all areas of local government in which it is not prohibited by Article 12, § 5 of the Kansas Constitution or by K.S.A. 19-101a. Home rule is prohibited, however, where there is a statute uniformly applicable to all cities or counties, as the case may be.

  Home rule is applicable in two other areas. The first is in the area of regulation and prohibition, where local government exercises its police power for the health, safety, and general welfare of the public. Local regulatory legislation is a special area of law governed by different rules than home rule; its origins precede both Article 12, § 5 of the Kansas Constitution and K.S.A. 19-101a.

  The final area of the law available for home rule is where a statute is nonuniformly applicable to all cities or counties or to specific cities or counties. A municipality may opt out of such a law only by charter ordinance or charter resolution. Charter ordinances and resolutions are subject to petition and referendum. This affects the desirability of their use by municipal governments.

  Let us first discuss home rule in police power ...


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