State Ex Rel. Morrison v. Sebelius
2008 Kan. LEXIS 70, 179 P.3d 366, 285 Kan. 875 (2008)
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Rule of Law:
A legislative provision violates the separation of powers doctrine if it makes a statute's operation contingent upon a future judicial determination of its constitutionality, as this improperly directs the executive to seek, and the judiciary to issue, a prohibited advisory opinion on an inoperative law.
Facts:
- In 2007, the Kansas legislature passed the Kansas Funeral Privacy Act, which replaced the Kansas Funeral Picketing Act.
- The new Act contained provisions making it unlawful to demonstrate within 150 feet of a funeral location for a specific period before, during, and after the service.
- The Act included a 'judicial trigger' provision, stating that these funeral protest restrictions would not become operative unless and until a Kansas or federal court first upheld their constitutionality.
- The Act also contained a 'judicial review' provision directing the state's Attorney General to file a lawsuit to obtain this judicial determination of constitutionality.
- The Attorney General believed the underlying funeral protest provisions were constitutional, but also believed the lawsuit mandated by the legislature would improperly seek an unconstitutional advisory opinion from the court.
- The legislature repealed the previous Kansas Funeral Picketing Act, leaving the key protest restrictions of the new Act inoperative pending the court ruling.
Procedural Posture:
- The Attorney General of Kansas, on relation of the State, filed an original action in the Kansas Supreme Court against the Governor of Kansas.
- The Attorney General sought a writ of quo warranto, challenging the constitutionality of the 'judicial trigger' provision in the Kansas Funeral Privacy Act.
- The Attorney General argued that the provision violated the separation of powers doctrine.
- The Attorney General requested that the court find the provision unconstitutional and sever it from the Act, which would render the remainder of the Act operative.
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Issue:
Does a legislative provision that directs the Attorney General to file a lawsuit to determine the constitutionality of an inoperative statute, and makes the statute's operation contingent on that judicial determination, violate the separation of powers doctrine by requiring a court to issue an advisory opinion?
Opinions:
Majority - Luckert, J.
Yes, the legislative provision violates the separation of powers doctrine. A court's judicial power is limited to deciding actual cases or controversies and does not extend to issuing advisory opinions on inoperative legislation. The court reasoned that the lawsuit mandated by the 'judicial trigger' provision would not present an actual case or controversy because the funeral protest provisions are inoperative. As the law is not in effect, no one's rights have been violated, no protest has been restricted, and no official has a present duty to enforce it. Therefore, any judicial ruling would be a purely advisory opinion on a hypothetical state of facts, which exceeds the constitutional grant of judicial power. The court also held that the legislature cannot compel the Attorney General, as an officer of the court, to file an action that seeks an unconstitutional remedy. Finally, the court refused to sever the unconstitutional trigger provision because doing so would make the protest rules immediately operative, which would directly contradict the legislature's explicit intent that the law only become effective upon a court's finding of constitutionality. Such an action by the court would itself be a usurpation of the legislative power to determine when a law takes effect.
Concurring-in-part-and-dissenting-in-part - Johnson, J.
Yes, the judicial trigger provision is invalid, but it should be severed from the rest of the Act. The legislature's intent regarding severability is explicitly stated in the Act's severability clause, which dictates that if any provision is held invalid, the other provisions that can be given effect should remain. The invalidation of the trigger provision leaves the rest of the Act, including its effective date clause, intact and capable of operating. The majority ignores the legislature's plain directive on severability, and the court should have honored that expressed intent by severing the unconstitutional provision, thereby allowing the funeral protest rules to become operative.
Analysis:
This decision strongly reinforces the 'case or controversy' requirement as a cornerstone of the judicial power under the Kansas separation of powers doctrine, explicitly prohibiting courts from acting as pre-enforcement constitutional advisors to the legislature. The ruling establishes a clear precedent that the legislature cannot create 'laws-in-waiting' and then task the judiciary with the legislative function of deciding whether they should become operative. The court's refusal to sever the unconstitutional provision is also significant, as it prioritizes the legislature's specific directive on the condition for the law's activation over a general severability clause, demonstrating judicial restraint in activating a law through a method the legislature did not intend.
