State ex rel. Derek Schmidt, Attorney General, Petitioner,
Governor Laura Kelly, in Her Official Capacity, Chief Justice Lawton R. Nuss, in His Official Capacity, and Kansas Senate, Respondents.
the facts and circumstances of this case, the Senate is not a
proper or necessary party and is dismissed from the action
brought on behalf of the State to determine the authority
under K.S.A. 2018 Supp. 20-3020 of either the Governor or
Chief Justice to make a new appointment to fill a Court of
Appeals vacancy after the Governor's original
appointee's purported withdrawal.
Statutory interpretation presents a question of law subject
to de novo review. When interpreting a statute, a court first
attempts to discern legislative intent through the statutory
language, giving common words their ordinary meanings.
K.S.A. 75-4315b is inapplicable to Court of Appeals
appointments made under K.S.A. 2018 Supp. 20-3020.
Courts ordinarily will not read a statute so as to add that
which is not readily found in the language.
K.S.A. 2018 Supp. 20-3020 does not authorize withdrawal of a
Court of Appeals appointment by the Governor or the appointee
once that appointment is made.
Under K.S.A. 2018 Supp. 20-3020(b), an appointment can fail
only if the Senate holds a vote to consent not later than 60
days after receiving the appointment and a majority of the
Senate does not vote to consent to the appointment.
Original action in quo warranto. Quo warranto granted.
Schmidt, attorney general, argued the cause, and Jeffrey A.
Chanay, chief deputy attorney general, Toby Crouse, solicitor
general, Dwight R. Carswell, assistant solicitor general,
Bryan C. Clark, assistant solicitor general, M.J. Willoughby,
assistant attorney general, and Kurtis Wiard, assistant
attorney general, were with him on the brief for petitioner.
Britton, chief counsel, Office of the Governor, argued the
cause, and was on the brief for respondent Governor Laura
Steven Pigg, of Fisher, Patterson, Sayler & Smith,
L.L.P., of Topeka, appeared, and Samuel A. Green, of the same
firm, was with him on the responses for respondent Chief
Justice Lawton R. Nuss.
Jeffrey R. King, of Sage Law, LLP, of Overland Park, argued
the cause and was on the brief for respondent the Kansas
an expedited original action in quo warranto brought by the
State on relation of the Attorney General against Governor
Laura Kelly, Chief Justice Lawton R. Nuss, and the Kansas
Senate concerning statutory procedures and obligations to
fill a vacancy on the Kansas Court of Appeals. Controversy
arose after an appointee purported to withdraw shortly after
the Governor announced the appointment. Disputes now abound
whether anyone has authority to take another step in the
process. An additional complication is presented because the
Governor announced a new appointment to the fill the same
vacancy after this lawsuit was filed.
controlling statute is K.S.A. 2018 Supp. 20-3020(b), which
provides in pertinent part:
"No person appointed pursuant to subsection (a) shall
assume the office of judge of the court of appeals until the
senate, by an affirmative vote of the majority of all members
of the senate then elected or appointed and qualified,
consents to such appointment. The senate shall vote to
consent to any such appointment not later than 60 days after
such appointment is received by the senate. . . . In the
event a majority of the senate does not vote to consent to
the appointment, the governor, within 60 days after the
senate vote on the previous appointee, shall appoint another
person possessing the qualifications of office and such
subsequent appointment shall be considered by the senate in
the same procedure as provided in this section. The same
appointment and consent procedure shall be followed until a
valid appointment has been made. . . . If the senate
fails to vote on an appointment within the time limitation
imposed by this subsection, the senate shall be deemed to
have given consent to such appointment." (Emphases
undisputed the Governor had to make her appointment to fill
the Court of Appeals vacancy within 60 days of the vacancy in
order to comply with K.S.A. 2018 Supp. 20-3020(a)(4), that
she made the appointment on the 60th day, and her office
hand-delivered documentation to that effect to the Senate
Majority Leader's office. As explained below, we hold
those actions effectively began the statutory 60-day Senate
confirmation process as to the first appointee and that the
statute makes no provision for a withdrawal once an
appointment is made. To infer an ability to withdraw requires
adding words to the statute, which is something courts avoid
under circumstances such as this. See Nauheim v. City of
Topeka, 309 Kan. 145, 150, 432 P.3d 647 (2019)
("The court will not speculate about legislative intent
and will not read the statute to add something not readily
found in it."); Ft. Hays St. Univ. v. University
Ch., Am. Ass'n of Univ. Profs., 290 Kan. 446,
464-65, 228 P.3d 403 (2010) ("[A]ppellate courts cannot
delete vital provisions or add vital omissions to a statute
if the legislature failed to enact the change as intended
under any reasonable interpretation of the language used,
regardless of the legislature's intention.").
further hold that K.S.A. 75-4315b(c), which generally
authorizes that "[a]n appointing authority may withdraw
an appointment from consideration by the senate at any time
before confirmation," is inapplicable to Court of
Appeals vacancies. Arguments that this more general statute
supplies withdrawal procedures missing from K.S.A. 2018 Supp.
20-3020 are unavailing. K.S.A. 2018 Supp. 20-3020(b) plainly
provides the only way for an appointment to fail is by the
Senate's vote. Accordingly, the Governor's new
appointment is ineffective because there may be only one
appointee at a time. As a matter of law, the second
appointment must be treated as if it never happened.
before discussing the merits, we address sua sponte whether
the Senate is properly named as a party to this quo warranto
action. And for the reasons stated below, we hold the Senate
is not a proper or necessary party and dismiss it from this
case. That said, we necessarily considered the Senate's
legal arguments in the course of analyzing the applicable
and Procedural Background
material facts are undisputed. Judge Patrick D. McAnany
retired from the Kansas Court of Appeals effective January
14, 2019. Sixty days later, on March 15, Governor Kelly
announced her appointment of District Court Judge Jeffry Jack
to the vacancy created by that retirement. Later that same
day, the Governor's appointments coordinator
hand-delivered documents signed by the Governor indicating
the nature of Judge Jack's appointment along with an
information packet about him to the Senate Majority
Leader's office. This delivery method and the type of
documents supplied were typical of the process generally used
for gubernatorial appointments subject to Senate
letter dated March 18, Judge Jack announced he was
withdrawing from his appointment at the Governor's
request. The following day, the Governor conveyed to the
Senate Majority Leader that Judge Jack had withdrawn at her
request. She also informed the Majority Leader she would
appoint someone else to fill the McAnany vacancy within 60
days. The facts prompting Judge Jack's purported
withdrawal, while highly publicized, are not part of our
the announced withdrawal, the Governor, Senate President
Susan Wagle, and the Attorney General disagreed about what
could be done next to fill the McAnany vacancy. The State
then brought this original action in quo warranto on relation
of the Attorney General asking this court to determine who
holds the appointing authority, if anyone, under the
granted a motion to expedite. The State, Governor, and Senate
filed briefs addressing the case's merits. The Chief
Justice filed a response expressing his intention to remain
neutral and to refrain from advocating a position on the
merits. The parties entered a stipulation of facts.
April 30, Governor Kelly announced she appointed Sarah Warner
to fill Judge McAnany's vacancy.
III, section 3 of the Kansas Constitution grants the Supreme
Court original jurisdiction over actions in quo warranto.
Relief in quo warranto is discretionary. We may entertain the
current proceeding if we determine the issue is of sufficient
public concern. State ex rel. Stephan v. Kansas House of
Representatives, 236 Kan. 45, 53, 687 P.2d 622 (1984).
All agree this controversy over an appellate judge's
timely appointment presents a matter of significant public
action in quo warranto demands that an individual or
corporation show by what authority it has engaged in a
challenged action. State ex rel. Schmidt v. City of
Wichita, 303 Kan. 650, 656, 367 P.3d 282 (2016). K.S.A.
60-1202(1) provides an action in quo warranto may be brought
in the Supreme Court: "When any person shall usurp,
intrude into or unlawfully hold or exercise any public
office, or shall claim any franchise within this state, or
any office in any corporation created by authority of this
state." This action challenges the Governor's
attempt to appoint Warner to fill the Court of Appeals
Senate's capacity to be sued
court ordered the parties to address whether they object to
the capacity of any party to sue or be sued in this quo
warranto action. None object. Nevertheless, the legal
question concerning whether the Legislature, or one house of
the Legislature, can be sued is unsettled and it is
legitimate for this court sua sponte to consider if the
Senate has the capacity to be involved in this litigation.
Kansas House of Representatives, 236 Kan. at 46, the
State filed an original action in both mandamus and quo
warranto against the Kansas House of Representatives, the
Senate, and Governor Carlin. It challenged the
constitutionality of a statute that allowed the Legislature
to adopt, modify, or revoke administrative rules and
regulations by concurrent resolution without presentment to
the Governor. The lawsuit was brought not ...