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State ex rel Slusher v. City of Leavenworth

December 14, 2007


Appeal from Leavenworth district court; DAVID J. KING, judge.


1. Whether mandamus lies depends upon an interpretation of the applicable procedural and substantive statutes, over which this court has unlimited review.

2. In applying the veteran's preference of K.S.A. 73-201, the hiring authority is invested with the power to determine whether a veteran applicant possesses every quality essential to the prompt, efficient, and honest performance of the duties pertaining to the office to be filled.

3. The determination of the appointing board or officer as to an applicant's qualifications involves official discretion, and, when made fairly and in good faith, the exercise of that discretion is not subject to control by the courts.

4. A prerequisite to awarding damages to the plaintiff in a mandamus action is that the plaintiff shall have been given judgment.

5. An award of attorney fees as damages in a mandamus action may be entered upon a finding that the public official's refusal to perform a duty was unreasonable. The denial of an attorney fees claim is reviewed for an abuse of discretion.

6. The veteran's preference in K.S.A. 73-201 does not violate the Privileges and Immunities Clause of the Kansas Constitution Bill of Rights, § 2 when the statute is interpreted to vest discretion in the hiring authority to determine that the veteran is competent to perform the duties of the position to be filled.

7. Applying the veteran's preference of K.S.A. 73-201 to promotions, as well as to initial hiring, does not create a due process or equal protection violation.

8. Generally, an agency should be given the first opportunity to exercise its discretion or special expertise. When an administrative remedy is provided by statute, such a remedy must ordinarily be exhausted before a party can bring the matter before the courts. However, if no agency remedy is available or when it is inadequate, exhaustion is not required.

9. An appeal will not be dismissed for mootness, unless it is clearly and convincingly shown that the actual controversy has ended and the only judgment that could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the case are concerned.

The opinion of the court was delivered by: Johnson, J.

Appeal affirmed and cross-appeal denied.

This action in mandamus by William Slusher and Ralph Sorrell (relators) to compel the City of Leavenworth (City) to apply the veteran's preference statute, K.S.A. 73-201, to promotions within the Leavenworth Police Department (LPD) returns to our court for a second time. See State ex rel. Slusher v. City of Leavenworth, 279 Kan. 789, 112 P.3d 131 (2005) (hereafter Slusher I). In this appeal, the relators complain that, although the district court granted them summary judgment with regard to the applicability of the veteran's preference, it should have ordered the City to promote them without further proceedings and should have awarded them damages and attorney fees. The respondents, City of Leavenworth, Greg Bakian, Lee Doehring, and Gary Ortiz, cross-appeal, claiming that the veteran's preference statute is unconstitutional and that the relators did not exhaust their administrative remedies. Further, respondents moved for a dismissal of Sorrell's appeal, claiming that it was now moot. We affirm the district court's rulings on the mandamus petition and deny respondents' cross-appeal and motion.

The genesis of this action was a vacancy in a lieutenant's position and a vacancy in a sergeant's position on the LPD. Slusher, a sergeant with the LPD, applied for the lieutenant's position; Sorrell, an LPD officer, applied for the sergeant's position. Both met the initial application requirements for the respective positions, and both were veterans within the purview of the veteran's preference statute. Neither was selected for a promotion; the successful applicants were not veterans.

In response to inquiries, Bakian, the City's personnel director, informed both relators that the veteran's preference applies only to initial hiring and, thus, was inapplicable to their applications for promotion. Doehring, the police chief, and Ortiz, the city manager, reiterated Bakian's interpretation that the veteran's preference statute did not apply to promotions.

Slusher and Sorrell subsequently filed a petition for writ of mandamus in the district court, alleging that they had been denied their respective promotions in violation of the veteran's preference in K.S.A. 73-201, and seeking an order compelling the LPD to promote them accordingly. The district court dismissed the petition, finding that the petition failed to state a claim upon which relief could be granted because K.S.A. 73-201 only applies to initial hiring, not promotions. Further, the district court found that mandamus was not an appropriate remedy because application of the veteran's preference statute involves the exercise of discretionary authority which cannot be the subject of a mandamus action.

Slusher and Sorrell appealed, and the matter was transferred to this court from the Court of Appeals. Slusher I, 279 Kan. at 790. Slusher I limited the opinion to the procedural posture of the case at that time. First, the court interpreted K.S.A. 73-201 to apply "to internal promotions as well as to initial hiring." 279 Kan. at 796. The court then noted that mandamus is "a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business, notwithstanding the fact that there also exists an adequate remedy at law. Wilson v. Sebelius, 276 Kan. 87, 90, 72 P.3d 553 (2003)." 279 Kan. at 797.

Finally, the court noted that "[m]andamus also is a proceeding used for compelling a public officer to perform a clearly defined duty, one imposed by law and not involving the exercise of discretion. Sedlak v. Dick, 256 Kan. 779, 785, 887 P.2d 1119 (1995)." 279 Kan. at 797. By pointing out that, in addition to defining which veterans are covered by the preference, K.S.A. 73-201 contains two eligibility requirements--competence to perform the job duties and good reputation--the court intimated that the application of the statute involves the exercise of discretion. However, given that a dismissal due to failure to state a claim is considered solely on the pleaded facts of the petition, the court suggested that the exercise of discretion was not yet an issue in the case, so as to preclude the mandamus procedure. 279 Kan. at 797-98. The matter was remanded to the district court for further proceedings.

Upon remand, the district court found that, pursuant to the Supreme Court's interpretation of K.S.A. 73-201, the City had no discretion as to whether to give meaningful preference to qualified veterans. Rather, the City had a clearly defined duty to consider the veteran's preference in its employment decisions relating to Slusher and Sorrell. Thus, the district court ruled that the "[f]ailure to do so requires [the district court] to order that the respondents make the promotion opportunities available to the relators and to properly apply the requirements of K.S.A. 73-201 in that process."

However, the district court opined that Slusher I left open the possibility that the relators' competence or good reputation might be disputed issues, the determination of which involves the exercise of discretionary authority so as to preclude mandamus relief. The court noted that the relators' good reputation was not in dispute but found that a dispute did exist as to their competence. Accordingly, the district court refused relators' request for a ruling that they were entitled to their respective promotions, as a matter of law.

In making its order, the district court cautioned that the relators were entitled to a "meaningful preference in the process." In that regard, the district court rejected respondents' suggestion that "competency" is the equivalent of "best qualified" because that definition effectively "eviscerates the preference," i.e., the best qualified applicant has no need for preferential treatment. Likewise, the district court rejected the relators' contention that meeting the minimum job qualifications satisfies the statutory competency requirement. The court opined that the statutory standard of competency lies somewhere in between, stating that it means "something more than meeting the minimum qualifications for the job," but "something less than having qualifications equal to or better than any other candidate." To guide the City, the court pointed to language in The State v. Addison, 76 Kan. 699, 707, 92 Pac. 581 (1907) (Addison I), which stated: "'Competent,' when used to indicate the qualifications which a public officer should possess, must necessarily include every qualification essential to the prompt, efficient and honest performance of the duties pertaining to the office to be filled."

Although the district court's journal entry purports to enter summary judgment for the relators, only a portion of the petitioners' prayers were granted. The relators obtained a favorable statutory interpretation but were denied the remedies which they sought. As noted above, the district court did not simply order the City to promote the relators, as they requested. Likewise, the district court rejected the relators' claims for damages and for attorney fees. The relators appeal these adverse rulings.


In their first two issues, the relators essentially argue that the district court had before it everything that it needed to order the City to promote them forthwith, i.e., that they were entitled to the promotions as a matter of law. We disagree.

Standard of Review

First, we note the parties do not concur on our standard of review. The disparity is understandable given the unusual nature of the case. The respondents advocate for the application of the well-settled review standard for summary judgments. See, e.g., Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007). However, this appeal deals with the relators' requests which were omitted from the summary judgment, or more accurately the partial summary judgment, in their favor. In arguing for a de novo review, the relators cite to Stith v. Williams, 227 Kan. 32, 34, 605 P.2d 86 (1980). However, the Stith standard of review applies when the district court determines a case based upon documents and stipulated facts, which is not entirely the instant case. Moreover, the action was styled as a petition for writ of mandamus. "Whether mandamus lies is dependent upon an interpretation of ...

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