July 24th. The Kansas Supreme Court has issued its decision in the case of McAlister v. City of Fairway (No.s 99,808 and 99,809 consolidated). In a unanimous opinion, written by Justice Dan Biles, the Court squashed an attempt to hold a vote on a citizen’s initiative restricting some of that City’s eminent domain powers. The Court also clarified its jurisprudence on what was permitted in an initiative.
The City of Fairway considered moving its City Hall to a location which contained some historic sites as well as adjoining residential property. This move was unpopular and a petition drive was held leading to two questions being submitted for the ballot. These question would have put to a vote rules forbidding:
1. The move of the City Hall to a number of stated locations, or residentially zoned properties as of January 2005.
2. The rezoning of specific sites and residentially zoned properties as of January 2005, into commercial zoning.
The City Clerk decided that the proposed petitions were invalid as they intruded into the City’s executive functions and did not put them up for a vote. The petitioners filed a lawsuit and the district court ruled summarily for the City. This appeal was then filed.
In making its ruling the Court reformulated its past rulings on how to determine whether a proposed petition impacting on a city was legislative (allowed) or executive (not allowed) in function. Previous cases did not quite synch up on this question and the court drew them together to create a new test. The new test may plainly be stated as asking a series of questions:
1. Whether the petition would create a new law or policy
2. Whether the petition declares and acts towards a public purpose
3. Whether the petition intrudes into areas of government requiring specialized training and expertise
4. Whether the petition addresses issues of statewide concern which the State has delegated to the City
In addition, the results of these four questions are to be viewed in the context of the petition subject matter and in the context of Kansas’ established policy on referenda that they only be permitted where they are legislative and not administrative or executive. On this latter point the Court observed that this is a long-standing tradition in Kansas law, on which other states differ and allow more latitude in petitions. The Court also stated that no rigid weighting of the four questions in the test will be used, rather they will be looked at in the context of the individual case.
The Court then examined the two petitions. It found that the first petition was legislative in character in all but one of the questions. It found it executive/administrative in that in itemizing specific sites as off-limits for the siting of City Hall it intruded into areas of government requiring specialized training. As a result of this it ruled that the petition was invalid. In making that decision the fact that the elimination of the use of eminent domain on Residential Properties would rule 80% of Fairway off-limits was a factor. Thus a similarly worded petition in a more diversely zoned city might pass muster.
The second petition was ruled administrative/executive in all its parts, save that its public purpose test was a mixture and did not lean either way. As such it was ruled invalid.
The Court therefore upheld the summary judgement that the petitions did not need to be presented to the voters. This is an important ruling since it recrafts the landscape for lower courts dealing with petition drives in the context of city politics. On the plus side, it plainly states the test to be employed. On the negative side, critics will note that the test provides the opportunity for opponents of given petitions to use the broad exclusion of matters requiring ‘specialized training’ to get those petitions blocked.