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Bissessarnath Ramcharan-Maharajh v. Delton M. Gilliland

September 7, 2012

BISSESSARNATH RAMCHARAN-MAHARAJH, APPELLANT,
v.
DELTON M. GILLILAND, COUNTY COUNSELOR, RHONDA BEETS, COUNTY CLERK, CARL MEYER, COUNTY COMMISSIONER, MIKE PRUITT, COUNTY COMMISSIONER, AND KEN KUYKENDALL, COUNTY COMMISSIONER, APPELLEES.



Appeal from Osage District Court; ERIC W. GODDERZ, judge.

SYLLABUS BY THE COURT

SYLLABUS BY THE COURT 1. Mandamus is an order that a public official or lower court perform a specified legal duty. A person seeking an order (or writ) of mandamus must show that the respondent has a clear legal duty to take the action at issue. 2. The Kansas Constitution provides for referendums only as provided for by statute. Kan. Const. art. 12, § 5(b). 3. No statute provides authority for the referendum sought in this case. 4. Because the Kansas Constitution authorizes referendums only as provided for by statute, a Kansas city cannot agree to hold a referendum that is not provided for by statute. Kansas cities may not enter into contracts that contravene statutes or public policy, and the Kansas Constitution is the preeminent declaration of the public policy of our state. 5. Any person has a First Amendment right to petition the government for the redress of grievances, but the First Amendment does not require that the government take action in response to a citizen's petition. The United States Constitution does not require states to provide for initiative or referendum rights. 6. Where a state establishes initiative and referendum rights, the state has the power to provide reasonable restrictions on access to the ballot.

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

Affirmed.

Before PIERRON, P.J., GREEN and LEBEN, JJ.

More than 4 years after Osage City had authorized contracts to participate in a federal rails-to-trails project, Bissessarnath Ramcharan-Maharajh submitted petitions seeking to put the project before the voters for approval-or disapproval-in a referendum. But referendums are available in Kansas only when specifically authorized by statute, and no statute authorized the referendum Ramcharan sought. The district court therefore properly dismissed Ramcharan's lawsuit, which sought to force county officials to put the referendum on the ballot.

FACTUAL BACKGROUND

In 2004, the Osage City Council passed a resolution authorizing the mayor to apply to the Kansas Department of Transportation for funds to participate in a federal rails-to-trails project, which converts unused railroad tracks into recreational trails. This particular project would convert some unused tracks in Osage City into pedestrian and bicycle trails. In January 2006, the city council passed resolutions that authorized the mayor to enter into a lease and a contract for design services, and the council passed another resolution that authorized the city manager to enter into a contract with the Kansas Department of Transportation that assigned responsibilities for completing the project.

More than 4 years later, in March 2010, Bissessarnath Ramcharan-Maharajh attended an Osage City Council meeting and expressed concern about the rails-to-trails project. The next month, Ramcharan presented the county clerk with a petition calling for a public vote on the four resolutions, which had passed in 2004 and 2006. The petition proposed a ballot question of whether the city's resolutions to construct the trails at a cost of more than $1 million should be effective.

In August 2010, the county clerk notified Ramcharan that the clerk was declining to review the signatures because Ramcharan's petition didn't present a question that could be the subject of an election. The same day, the county counselor notified Ramcharan that there was no legal basis in his petition that would compel an election.

Ramcharan filed suit in November 2010, seeking a writ of mandamus that would compel the clerk to accept, verify, and certify the names on the petition. Ramcharan named the county clerk, the county counselor, and three county commissioners as respondents in his petition.

The district court granted the county's motion for judgment on the pleadings and dismissed Ramcharan's petition. Ramcharan has appealed that dismissal to this court.

ANALYSIS

Ramcharan raises a number of arguments on appeal, but we find three broad propositions decisive. First, referendums are only authorized in Kansas where provided for by statute, and no statute authorizes the referendum Ramcharan seeks. Second, the city has no authority to agree to a referendum that's not authorized by Kansas statute, so even if-as Ramcharan alleges-the city agreed to the referendum, the agreement wouldn't be valid. Third, the First Amendment doesn't guarantee a right to referendum, so the inability to put these city actions to public vote in a referendum ...


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