IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS ...
12CV09837 Div 7
IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS CIVIL COURT DEPARTMENT THE LIBERTARIAN PARTY OF KANSAS, et al., Plaintiffs, Case No. 12 CV 9837 Chapter 60; Division 7
v. CITY OF PRAIRIE VILLAGE, et al., Defendants. ORDER OF DISMISSAL
The Libertarian Party of Kansas (“Plaintiff”), naming members Al Terwelp, party chairman, and Earl McIntosh, Second Amendment chairman, as plaintiffs, has sued the City of Prairie Village, Mayor Tom Shaffer, and all members of the City of Prairie Village’s City Council (“Defendants”), challenging the constitutionality of an ordinance restricting the open carry of firearms. Doc. 1.
Specifically, Plaintiff asserts the preemptive effect of the Kansas
“open carry” statute, K.S.A. 12-16,124, and alleges the Kansas constitutional provision relating to firearms, which in turn implicates federal constitutional rights as well. Plaintiff seeks a declaratory judgment, an action in quo warranto, permanent injunctive relief, and an order of mandamus. Doc. 1. Plaintiff also filed a nearly identical Petition against the City of Leawood and its city council members. See Case 12CV9838. Defendants in this case, as well as the defendants named in the Leawood suit, moved to consolidate the cases. On February 14, 2013, the parties appeared and the Court denied the Motion to Consolidate, but reassigned the
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Leawood suit to this same division. The Court also set dates on which Plaintiff was to respond to the Defendants’ Motion to Dismiss on file in both cases. On April 8, 2013, the parties appeared and submitted arguments on Defendants’ Motions to Dismiss. Defendants argued orally and in their motion that Plaintiff lacks standing, no case or controversy exists to support a declaratory judgment, Plaintiff is the wrong party to bring a quo warranto case, Plaintiff fails to allege any irreparable harm to support injunctive relief, Plaintiff fails to allege a basis for mandamus, and the claims against individual members of the City Council are redundant. Doc. 34. Plaintiff responded that jurisdiction is proper under K.S.A. 601202, and that “injury in fact is a factual question which should be developed through discovery.” Doc. 35, p. 4.1 The Court dismissed the Libertarian Party from the suit based on lack of standing, and took the standing issues regarding Mr. Terwelp and Mr. McIntosh under advisement. The Court is now ready to rule on the matter. STANDARD FOR A MOTION TO DISMISS The standard applicable to a motion to dismiss under K.S.A. 60-212(b)(6), failure to state a claim upon which relief can be granted, requires the Court to credit the well-pleaded facts of the non-moving party without crediting conclusory allegations. Gatlin v. Hartley, Nicholson, Hartley & Arnett, P.A., 29 Kan. App. 2d 318, 319, 26 P.3d 1284 (2001) (citing Grindsted Prods., Inc. v. Kan. Corp. Comm'n, 262 Kan. 294, 302-03, 937 P.2d 1 (1997)). Although a court is not required to accept conclusory allegations, the petition is to be liberally construed. Mitchell v. Wilfong, 4 Kan. App. 2d 231, 232, 604 P.2d 79 (1979). Only if a party can prove "no set of facts" is dismissal justified. Dye v. WMC, Inc., 38 Kan. App. 2d 655, 661, 172 P.3d 49 (2007). 1
Neither the Court, Defendants in this case, or the Defendants in the Leawood suit received Plaintiff’s Response that was allegedly sent out on March 7, 2013 until April 8, 2013, hours before the hearing on the Motion. The Response itself asserts only argues legal issues, and will be considered by the Court for what it is. 2
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A petition should not be dismissed for failure to state a claim unless, after reviewing the petition in the light most favorable to plaintiff and with every doubt resolved in plaintiff's favor, that, under plaintiff's pleadings, the plaintiff can prove no set of facts, either under plaintiff's theory or under any other possible theory, in support of plaintiff's claim which would entitle plaintiff to relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim. Halley v. Barnabe, 271 Kan. 652, 656, 24 P.3d 140 (2001) (citing Knight v. Neodesha Police Dep’t, 5 Kan. App. 2d 472, 620 P.2d 837 (1980)); see also Rector v. Tatham, 38 Kan. App. 2d 933, 936-37, 174 P.3d 445 (2008); Jones v. State, 279 Kan. 364, 366, 109 P.3d 1166 (2005). “Standing is a question of whether the plaintiff has alleged such a personal stake in the outcome of a controversy as to warrant the invocation of jurisdiction and justify exercise of the court’s remedial powers on his or her behalf.” Varney Bus. Serv. Inc. v. Pottroff, 275 Kan. 20, 30, 59 P.3d 1003 (2002). Plaintiff has the burden to establish standing to sue. Lujan v. Def. of Wildlife, 504 U.S. 555, 560-61 (1992). Standing must be demonstrated as to each form of relief sought by Plaintiff. Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). In order for an association to have standing to file suit, it must have members who have standing to sue, have interests sought to be protected that are germane to the association’s purpose, and neither the claim nor the relief requested requires participation of individual members. NEA-Coffeyville v. Unified Sch. Dist. No. 445, 268 Kan. 384, 387, 996 P.2d 821 (2000) (citing Hunt v. Wash. Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)). In order for an individual to have standing to file suit, a plaintiff must show injury in fact, causation, and redressability. Lance v. Coffman, 549 U.S. 437, 439 (2007). The injury must be a cognizable injury in fact that is concrete and particularized. State ex rel. D.S.M. v. Mealey, 33 Kan. App. 2d 947, 954, 112 P.3d 956 (2005) (“absent an injury specifically due to overbreadth, Mealey cannot establish a concrete and particularized injury in fact to justify standing for such a challenge.”). 3
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Further, “Kansas courts are constitutionally without authority to render advisory opinions, and a court’s jurisdiction to issue an injunction is dependent upon the existence of an actual case or controversy.” Shipe v. Pub. Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 165, 210 P.3d 105 (2009) (citing State ex rel. Morrison v. Sebelius, 285 Kan. 875, 897, 179 P.3d 366 (2008); Educ. Ass’n v. U.S.D. No. 312, 273 Kan. 875, 882, 47 P.3d 383 (2002)). If a plaintiff does not have standing to bring suit, then there is no justiciable case or controversy and a motion to dismiss must be granted. Kan. Bar Ass’n v. Judges of Third Judicial Dist., 270 Kan. 489, 490, 12 P.3d 1154 (2000). DISCUSSION I. IMPLICATION OF STANDING IN CONSTITUTIONAL CASES This case implicates both the United States and Kansas Constitutions. The Second Amendment to the United States provides that “a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” U.S. CONST. AMEND. II. The Kansas Constitution reads: “a person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.” KAN. CONST. BILL OF RIGHTS § 4 (2010). Because the Second Amendment is implicated, recent cases regarding the Second Amendment and standing are instructive as to the Kansas constitutional issues. Several courts have found that the denial of a license to carry or purchase a gun may constitute an injury sufficient to bring a case for violation of the Second Amendment. Peterson 4
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v. Martinez, 707 F.3d 1197, 1209 (10th Cir. 2013); Kachalsky v. Cacase, 817 F. Supp.2d 235, 248 (S.D.N.Y. 2011); Dearth v. Holder, 641 F.3d 499, 501 (D.C.Cir. 2011); Ezell v. City of Chicago, 651 F.3d 684, 695 (7th Cir. 2011); Parker v. Dist. of Columbia, 478 F.3d 370 (D.C. Cir. 2007). In all the cited cases, plaintiffs alleged in their complaints that they applied for and were denied permits to carry or purchase firearms, thus establishing a particular injury to themselves. Standing was established in Nat. Rifle Ass’n of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 188 (5th Cir. 2012), where plaintiff was an association challenging the constitutionality of a statute restricting the sale of firearms to persons over 21. The plaintiff plead that it had over 11,000 members in the 18-to-20-year-old age demographic, and the court held that “by prohibiting [federal firearms licensees] from selling handguns to 18-to-20-year-olds, the laws cause those persons a concrete, particularized injury – i.e., the injury of not being able to purchase handguns from [federal firearms licensees].” Id. at 191-92. Whether or not a plaintiff has standing to pursue a case alleging infringement on any constitutional right depends on the facts plaintiff alleges to show that defendant’s actions are impacting the plaintiff, and his exercise of a constitutional right, in some way. While “it is not necessary that [a] petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights,” he must allege some sort of specific harm that results from the statute. Steffel v. Thompson, 415 U.S. 452, 459 (1974). For example, the court in Wisconsin Carry, Inc. v. City of Madison, Wis., 2011 WL 2884091 at 2 (W.D. Wisc. July 15, 2011), initially dismissed the plaintiffs’ claims for lack of standing to challenge the defendants’ policy regarding open carry and prosecution because “any claim by plaintiffs that they would be arrested or prosecuted for carrying a firearm was 5
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speculative.” The court further explained that “[t]he problem with plaintiffs’ challenge to the unwanted police contact was that plaintiffs were not clear in the complaint whether the prospect of that [police] contact was altering their behavior.” Id. at 3. Plaintiffs then amended their complaint, revealing that they intend to openly carry firearms in the jurisdiction that limited their right to do so. Id. This description of particularized harm was sufficient. II. LAWS ADDRESSING OPEN CARRY IN KANSAS In addition to the constitutional right, Kansas has a statutory provision relating to a city’s regulations of the open carry of firearms: (a) No city or county shall adopt any ordinance, resolution or regulation, and no agent of any city or county shall take any administrative action, governing the purchase, transfer, ownership, storage or transporting of firearms or ammunition, or any component or combination thereof. Except as provided in subsection (b) and subsection (a) of K.S.A. 75-7c11, and amendments thereto, any such ordinance, resolution or regulation adopted prior to the effective date of this 2007 act shall be null and void. (b) Nothing in this section shall: (1) Prohibit a law enforcement officer, as defined in K.S.A. 22-2202, and amendments thereto, from acting within the scope of such officer's duties; (2) prohibit a city or county from regulating the manner of openly carrying a loaded firearm on one's person; or in the immediate control of a person, not licensed under the personal and family protection act while on property open to the public; (3) prohibit a city or county from regulating in any manner the carrying of any firearm in any jail, juvenile detention facility, prison, courthouse, courtroom or city hall; or (4) prohibit a city or county from adopting an ordinance, resolution or regulation requiring a firearm transported in any air, land or water vehicle to be unloaded and encased in a container which completely encloses the firearm or any less restrictive provision governing the transporting of firearms, provided such ordinance, resolution or regulation shall not apply to persons licensed under the personal and family protection act. K.S.A. 12-16,124 (emphasis added). As the Court has been informed by plaintiff’s counsel, the Kansas Legislature is considering a further amendment to this statute to further clarify a city’s 6
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inability to regulate the open carry of firearms. H.B. 2111, 2013 House, 85th Sess. (Kan. 2013). However, this fact alone is irrelevant to the Court’s analysis or the issue of standing. In this regard, Prairie Village’s ordinance relating to the criminal use of weapons reads, in relevant part: (a) Criminal use of weapons in knowingly: [...] (4) Carrying any pistol, revolver, shotgun, rifle or other firearm with similar characteristics, concealed or exposed on or about the person, or in or on any part or area of any air, land or water vehicle unless the pistol, revolver or other firearm is unloaded and encased in a container that completely encloses the pistol, revolver or other firearm, except when on the person’s land or in the person’s abode or fixed place of business; Prairie Village, Kan., Code, Ch. 11 Art. 1, § 10.1 (2012). This case also implicates constitutional rights of cities to exercise “home rule.” In pertinent part, KAN. CONST. ART. 12, § 5(b) and (d) (1961), reads: Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions except when and as the levying of any tax, excise, fee, charge or other exaction is limited or prohibited by enactment of the legislature applicable uniformly to all cities of the same class: Provided, That the legislature may establish not to exceed four classes of cities for the purpose of imposing all such limitations or prohibitions. Cities shall exercise such determination by ordinance passed by the governing body with referendums only in such cases as prescribed by the legislature, subject only to enactments of the legislature of statewide concern applicable uniformly to all cities, to other enactments of the legislature applicable uniformly to all cities, to enactments of the legislature applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction and to enactments of the legislature prescribing limits of indebtedness. [...] Powers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of selfgovernment. Whether this provision could or would allow cities to regulate open carry in the manner that is evident, which is disconcertingly broad in the face of both constitutional provisions and statutory preemption, cannot be addressed in the case at bar because of the standing issue.
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III. ORGANIZATIONAL STANDING OF THE LIBERTARIAN PARTY The Court has sustained Defendants’ Motion to Dismiss with regard to the Libertarian Party of Kansas.
As an organization, its members must have standing in order for the
organization itself to have standing. Plaintiff’s Petition purportedly identifies three plaintiffs: (1) The Libertarian Party of Kansas, (2) Al Terwelp, party chairman, and (3) Earl McIntosh, Second Amendment chairman. Doc. 1, p. 1. While listed as plaintiffs, it is clear that the individuals are listed only with respect to their organizational positions within the party itself, as reflected by the Petition: Plaintiff, Al Terwelp, is the acting Chairman of the Libertarian Party of Kansas, and a citizen of the State of Kansas, with an address of 12156 S. Stanley Rd., Overbrook, KS 66524, and should be served with any and all subsequent filings, papers, and documents, through its attorney, Lucas L. Thompson, at 5942 SW 29th Street, Suite A, Topeka, Kansas, 66614. […] Plaintiff, Earl McIntosh, is the Second Amendment Chair of the Libertarian Party of Kansas, and is a citizen of the State of Kansas, with an address of 4208 SW Stonybrook Dr., Topeka, KS 66610, and should be served with any and all subsequent filings, papers, and documents, through its attorney, Lucas L. Thompson, at 5942 SW 29th Street, Suite A, Topeka, Kansas, 66614. Doc. 1, ¶¶ 2, 3 (emphasis added). The Petition also begins “COMES NOW Plaintiff, a non-profit organization, by and through their attorney, and for its claims for relief against the defendants, alleges and states the following.” Doc. 1, p. 1 (emphasis added). The inclusion of the individual members’ officer status, the reference to Mr. Terwelp and Mr. McIntosh as “it,” and the singular reference to “Plaintiff” in the Petition, makes it apparent that it is only the Libertarian Party that is bringing this action, purportedly bolstered by the inclusion of Mr. Terwelp and Mr. McIntosh. Employing the individual plaintiffs in the Petition, however, cannot allow the Libertarian Party to survive the first prong of the organizational standing requirement, because it is apparent 8
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neither individual plaintiff has suffered, much less alleged, any particularized injury. Even if Mr. Terwelp and Mr. McIntosh were intended as separate, individual plaintiffs, they have failed to allege anything remotely individualized to save this action from a hypothetical injury. IV. STANDING OF THE INDIVIDUAL PLAINTIFFS As noted above, the only reference to the individual plaintiffs are those outlined above and a description of their membership in the Libertarian Party of Kansas. They also generally allege that “[t]his ordinance completely prohibits plaintiffs’ constitutional and statutory rights to open-carry a firearm in the City of Prairie Village.” Doc. 1, ¶ 28. The individuals neither asserted their presence in Prairie Village, whether they own firearms, or they have been subject to any punishment for a violation of the ordinance. Even Plaintiff’s Response omits any particularized injury and none was apparent during oral argument. At oral argument, counsel for plaintiff suggested (after inquiry by the Court) that discovery is needed to determine any injury to Mr. Terwelp or Mr. McIntosh. But plaintiffs are the masters of their pleading and if they do not know that they have suffered an injury and have failed to allege the same, no amount of discovery from an adverse party will change this glaring omission. Plaintiff’s Response to Defendants’ Motion states: “[s]imple discovery is likely to show several entries by Plaintiffs into one of [sic] both of the adversarial municipalities within the codified time period.” Doc. 35, p. 3 (emphasis added). The Court cannot conceive of any facts relating to the individual’s purported injury that would require discovery if plaintiffs failed to allege the same and counsel failed to even tell the Court that such an injury had occurred. More than likely the reason such an omission exists because this solely is a lawsuit filed by the organization, not the individuals. Moreover, it is incumbent upon any party to competently allege standing which is a 9
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threshold issue and completion of discovery should not be necessary for any plaintiff to decide whether he has been injured. Bonner Springs Unified Sch. Dist. No. 204 v. Blue Valley Unified Sch. Dist. No. 229, 32 Kan. App. 2d 1104, 1108, 95 P.3d 655 (2004) (“It has long been recognized that standing imparts justiciability and must be determined as a threshold issue.”). Presuming, despite no allegation, that an individual plaintiff sought to enter Prairie Village, or any other municipal jurisdiction containing any law with which that individual had a disagreement (such as a pit bull ordinance), would be insufficient to establish an injury-in-fact for standing purposes. The Bonner Springs case is instructive, because even if there are facts which the Court could conjure, it would not give an individual plaintiff standing. Id. at 1111. In Bonner Springs, the Court said: First, plaintiffs claim that they have standing because they shop in Johnson County and therefore are obliged to pay the new sales tax. This claim of standing fails for three reasons: (i) As noted by defendants, plaintiffs are under no compulsion to shop in Johnson County; we hold that plaintiffs cannot acquire legal standing by submitting themselves unnecessarily to a purported injury (volenti non fit injuria); (ii) this claim of injury is not unique to plaintiffs; in fact, payment of the new sales tax is precisely the injury suffered by anyone who shops in Johnson County and can only be redressed by the proper public official; (iii) payment of the tax is not an injury caused by the acts complained of; payment of the tax is an injury resulting from the levy and collection of the sales tax (which is not the subject of plaintiffs' challenge), not the distribution and receipt of the revenues generated by the tax (which are the subject of plaintiffs' challenge). Plaintiffs' first claim of standing fails as a matter of law. Id. (emphasis added). Here, even if Mr. Terwelp and Mr. Mcintosh have visited Prairie Village to incite a challenge to the ordinance, and intentionally open-carried firearms within that jurisdiction, it is insufficient to establish standing because a plaintiff may not acquire standing by unnecessarily submitting himself to injury.
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Although it is true that a plaintiff may gain standing by showing that he or she is refraining from an activity in order to avoid harm, Friends of the Earth, Inc. v. Laidlaw Env. Serv., Inc., 528 U.S. 167, 182-83 (2003) (sufficient standing alleged by members who would like to use the river but refrained from doing so because of defendant’s pollution thereof), even this minimal allegation is absent here. Indeed, plaintiff asserts that the Johnson County Sheriff will ignore the ordinance (precluding any threat of arrest), although it concludes that it can only exist, then, as “a harassing attempt to prevent individuals from open-carry within these jurisdictions.” Doc. 35, p. 6. Plaintiff’s Response further offered, as a basis for injury: It is clear even from Defendants’ motions to dismiss that the cities of Leawood and Prairie Village completely ban the open-carry of firearms within their incorporated boundaries. This clear violation of K.S.A. 12-16,124, et seq., creates an actual, imminent, concrete, and particularized injury-in-fact each and every time Plaintiffs, or any of its thousands of party members, enter into the municipalities’ boundaries. […] It is an altogether fair and reasonable inference that Plaintiffs and Plaintiff’s party members have suffered actual harm, Intrastate travel by Plaintiffs to the State’s busiest and most popular metroplex, is a reasonable inference under any set of facts. Simple discovery is likely to show several entries by Plaintiffs into one of [sic] both of the adversarial municipalities within the codified time period. This is certainly a fact or inference that must be resolved in Plaintiffs’ favor and one on which this case should not solely turn. […] The very logical inference, and in fact the injury from which Plaintiffs seek relief, is that Plaintiffs are prohibited from carrying holstered firearms within the Defendants’ jurisdictions thereby preventing Plaintiffs from their right of selfdefense. […] Plaintiffs herein are altogether, completely, concretely, and particularly prohibited from exercising their constitutional and statutory rights to openly carry firearms pursuant to Defendants’ ordinances. This is not a hypothetical injury. This is a new, repetitive injury every time Plaintiffs enter the jurisdiction of Defendants. Doc. 35. 11
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All of the foregoing demonstrates, at best, a series of legal conclusions because plaintiffs had it within their power to allege a particularized injury and failed to do so. An injury is particularized if it “affect[s] the plaintiff in a personal and individual way.” Lujan v. Def’rs of Wildlife, 504 U.S. 555, 560 n. 2 (1992). The individuals here suffer no more injury than any citizen who lives in the state who might enter the jurisdiction. Sweeping remarks that thousands, if not every person who enters Prairie Village, experience an infringement of the right to bear arms further indicates that plaintiff is an improper party to challenge the ordinance, as is further discussed, infra, in the context of quo warranto. An additional argument asserted is that the ordinance prohibits Mr. Terwelp and Mr. McIntosh from being able to defend themselves. However, aside from the drama associated with this, again, there is no evidence that either individual has visited Prairie Village, or that this hypothetical injury exists.2 Additionally, the injury must be actual or imminent, not conjectural, and “someday intentions – without any description of concrete plans, or indeed even any specification of when the someday will be – do not support a finding of the actual or imminent injury that our cases require.” Lujan, 504 U.S. at 564 (formatting omitted). Nevertheless, Plaintiff continues to assert legal arguments, not factual arguments, to support its Petition. Finally, because it is apparent that the individuals only assert the interest of a political party, as opposed to their individual interests, the organization’s particular cause or issue is insufficient. Id. at 563 (“respondents had to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities 2
Furthermore, there are many different methods in which one could defend himself. That the one method that the plaintiff seeks to make permissive is unavailable in Prairie Village does not leave Mr. Terwelp or Mr. McIntosh completely incapable of defending themselves. For all the Court knows, they do or do not possess a firearm or do or do not possess concealed carry permits. The Court will not guess as to what means they have at their disposal to protect themselves. 12
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abroad, but also that one or more of respondents' members would thereby be “directly” affected apart from their “‘special interest’ in th[e] subject.””) (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 739 (1972)). Like Mr. Terwelp and Mr. McIntosh, the Libertarian Party itself has asserted no facts leading to any inference of an injury suffered by the Prairie Village ordinance. Given the lack of facts leading to an injury suffered by the individual plaintiffs named in the Petition, as well as the Libertarian Party itself, the Defendants’ Motion to Dismiss is sustained as to all named individuals in the Plaintiff’s Petition. V. DECLARATORY RELIEF Defendants contend that because Plaintiff cannot establish an injury caused by Defendants, then its claim for a declaratory judgment should be dismissed. Plaintiff argues that the ordinance is confusing and uncertain, but does not address the sufficiency of its claim; rather, it continues with legal arguments on the merits. Generally, declaratory relief is reserved for those who have been injured. In re Estate of Keller, 273 Kan. 981, 984, 46 P.3d 1135 (2002) (“Declaratory relief is not to be entertained for the purpose of settling abstract questions, however interesting or important to the public generally, but is limited to correct errors injuriously affecting the appellant.”); Bd. of Cnty. Comm’rs of Reno Cnty. v. Asset Mgmt and Mktg. LLC, 28 Kan. App. 2d 501, 504, 18 P.3d 286 (2001) (“The function of a declaratory judgment action pursuant to KSA 60-1701 is to provide a speedy and flexible method for determining the rights and obligations of parties in cases of actual controversy where there is actual antagonistic assertion and denial of right.”). Since Plaintiff can assert no injury, it lacks standing to bring such an action. Plaintiff argues that Scott v. Unified Sch. Dist. No. 377, 7 Kan. App. 2d 82, 86, 638 P.2d 941 (1981), supports the proposition that the Court has jurisdiction to hear this case. Specifically, 13
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Plaintiff cites the following excerpt: District courts have no inherent appellate jurisdiction over official acts of administrative officials or boards except where legislature has made some statutory provision for judicial review; however, if such officials or boards act beyond the scope of their powers, and no appeal is provided for, relief may be sought through such equitable remedies as quo warranto, mandamus, or injunction. Plaintiff cites this passage out of context. The very next paragraph states that “[t]his action, however, was not brought as an equitable one, but was brought specifically under 42 U.S.C. 1983.” Id. The Kansas Court of Appeals was making the point that the district court’s assumptions regarding the sole statutory review powers of a district in that case were mistaken because of the listed equitable remedies that may occasion a district court review by illustration of the different types of actions available. That is not to say it thereby endorsed each of those actions as a basis for a review in that case. This case does not provide any authority for Plaintiff’s standing argument. VI. QUO WARRANTO Defendants attack Plaintiff’s quo warranto action because the Plaintiff is not the proper person to bring the same. Plaintiff asserts that jurisdiction is proper under K.S.A. 60-1202 (2012).3 However, Plaintiff fails to acknowledge Kansas law regarding quo warranto actions.
3
“Such action may be brought in the supreme court or in the district court in the following cases: (1) 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. (2) Whenever any public officer shall have done or suffered any act which by the provisions of law shall work a forfeiture of his or her office. (3) When any association or number of persons shall act within this state as a corporation, without being legally incorporated. (4) When any corporation does or omits acts which amount to a surrender or a forfeiture of its rights and privileges as a corporation, or when any corporation abuses its power or exercises powers not conferred by law. (5) For any other cause for which a remedy might have been heretofore obtained by writ of quo warranto at common law.” 14
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While Plaintiff is correct that a district court may hear constitutionality challenges to an ordinance, it is not the proper party to do so. In a case challenging an annexation ordinance, the court clearly stated that the attorney general is the appropriate party to challenge the same. Bd. of Cnty. Comm’rs of Cnty. of Sumner v. City of Mulvane, 43 Kan. App. 2d 500, 509-10, 227 P.3d 997 (2010) (“while a quo warranto action may be the proper vehicle to challenge a city’s annexation ordinances, the Board is not an authorized ‘driver.’ Rather, the authorized driver is the State, acting through a proper officer.”). K.S.A. 60-1203 provides that “[w]here the action is brought by a person claiming an interest in an office, franchise or corporation, or claiming an interest adverse to a resolution, ordinance, franchise, gift or grant, which is the subject of the action, it shall be prosecuted in the name and under the direction of such person, otherwise it shall be prosecuted in the name of the state by the attorney general or county attorney.”
As interpreted, however, our courts have
required a sufficient interest to warrant that an action be brought by an entity with standing. “Capacity in quo warranto to challenge the acts of public officials does not arise from the fact a person or persons are taxpayers, the question is whether they suffered some peculiar personal injury separate and apart from all other taxpayers of the city alike.” Fransham v. McDowell, 202 Kan. 604, 610, 451 P.2d 131 (1969) (plaintiffs had no capacity to sue in quo warranto to challenge the city’s sponsoring of a program). Plaintiff (who does not allege taxpayer status in Prairie Village) has not and cannot assert any injury that is particular to it and distinct from any other person who visits Prairie Village. Indeed, because every person who enters Prairie Village is affected by the ordinance, the attorney general is the proper person to bring an action in quo warranto to challenge the constitutionality of Prairie Village’s ordinance.
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VII. INJUNCTION Defendants argue that Plaintiff has not alleged a case for a permanent injunction, so the count should be dismissed.
Plaintiff argues that it will be able to show that an injunction is
warranted at the conclusion of this case, but offers no additional facts. To establish a claim for injunctive relief, a movant must show: (1) a substantial likelihood of eventually prevailing on the merits; (2) a reasonable probability of suffering irreparable future injury; (3) the lack of obtaining an adequate remedy at law; (4) the threat of suffering injury outweighs whatever damage the proposed injunction may cause the opposing party; (5) and the impact of issuing the injunction will not be adverse to the public interest. Downtown Bar and Grill, LLC, 294 Kan. 188, 191,273 P.3d 709 (2012). One cannot suffer irreparable injury or a likelihood of prevailing on the merits unless one has standing. Even on the Court’s invitation at oral argument, Plaintiff was unwilling to show any factual scenario that would allege injury to it by the ordinance. VIII. MANDAMUS Defendants argue that mandamus is inappropriate because Plaintiff fails to allege any basis for a remedy. Plaintiff responds that the Johnson County Sheriff has said he will proceed as if the ordinance does not exist and that this may prevent citizens from exercising their fundamental constitutional rights. Even this unverified statement, however, cannot create a case and controversy, such as if one of the party’s members might be prosecuted for an ordinance violation.4 Again, the harm Plaintiff alleges is no different than that which every citizen would suffer. Without more, Plaintiff has asserted no actual set of facts warranting mandamus. The Kansas Supreme Court has addressed a similar lack of standing in which a petition 4
The mere threat of such a violation dims when it is clear that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” U.S. v. Black, 707 F.3d 531, 540 (4th Cir. 2013). Because Kansas permits open carry, an investigatory detention is not a likelihood. 16
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lacked assertion of a particularized injury to the plaintiffs, and held that: [T]he pleading shows upon its face that the plaintiffs are seeking to compel the defendants to proceed to perform certain alleged public duties under a statute enacted for the protection of the public welfare, public health, and public safety in the exercise of the police power of the state, and that nowhere in such pleading does it appear that they have any interest in the subject matter in litigation different than that of the public generally. Dennis v. State Bd. of Barber Exam’rs, 174 Kan. 561, 565, 257 P.2d 940 (1953), reaffirmed in Kan. Bar Ass’n v. Judges of Third Judicial Dist., 270 Kan. 489, 493, 14 P.3d 1154 (2000). “While mandamus will not ordinarily lie at the instance of a private citizen to compel the performance of a public duty, it has been held where an individual shows an injury or interest specific and peculiar to himself, and not one that he shares with the community in general, the remedy of mandamus and the other extraordinary remedies are available.” Stephens v. Van Arsdale, 227 Kan. 676, 683, 608 P.2d 972 (1980). Plaintiff simply cannot go forward on any of its claims unless it can establish a specific injury, particular to the persons named in the Petition or other members. IX. WHETHER LEAVE TO AMEND WILL CURE THE DEFICIENCY While ordinarily a deficiency in a petition might enable the plaintiff leave to amend to properly assert its claims, the Plaintiff in this instance cannot create what does not exist and, in the Court’s estimation, the effort would be futile because it cannot conceive of any set of facts that would create an injury in the circumstances presented.
The petition is replete with
allegations that are repetitive, conclusory and short on substantive injury of any kind. CONCLUSION For the foregoing reasons, the above titled case is hereby dismissed.
17
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IT IS SO ORDERED.
4/17/13 Date
/s/ David W. Hauber_________________ DAVID W. HAUBER District Court Judge, Div. 7
NOTICE OF ELECTRONIC SERVICE Pursuant to KSA 60-258, as amended, copies of the above and foregoing ruling of the court have been delivered by the Justice Information Management System (JIMS) automatic notification electronically generated upon filing of the same by the Clerk of the District Court to the e-mail addresses provided by counsel of record in this case. Counsel for the parties so served shall determine whether all parties have received appropriate notice, complete service on all parties who have not yet been served, and file a certificate of service for any additional service made. /s/ DWH
18
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IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS CIVIL COURT DEPARTMENT THE LIBERTARIAN PARTY OF KANSAS, et al., Plaintiffs, Case No. 12 CV 9837 Chapter 60; Division 7
v. CITY OF PRAIRIE VILLAGE, et al., Defendants. ORDER OF DISMISSAL
The Libertarian Party of Kansas (“Plaintiff”), naming members Al Terwelp, party chairman, and Earl McIntosh, Second Amendment chairman, as plaintiffs, has sued the City of Prairie Village, Mayor Tom Shaffer, and all members of the City of Prairie Village’s City Council (“Defendants”), challenging the constitutionality of an ordinance restricting the open carry of firearms. Doc. 1.
Specifically, Plaintiff asserts the preemptive effect of the Kansas
“open carry” statute, K.S.A. 12-16,124, and alleges the Kansas constitutional provision relating to firearms, which in turn implicates federal constitutional rights as well. Plaintiff seeks a declaratory judgment, an action in quo warranto, permanent injunctive relief, and an order of mandamus. Doc. 1. Plaintiff also filed a nearly identical Petition against the City of Leawood and its city council members. See Case 12CV9838. Defendants in this case, as well as the defendants named in the Leawood suit, moved to consolidate the cases. On February 14, 2013, the parties appeared and the Court denied the Motion to Consolidate, but reassigned the
1
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* * *
Leawood suit to this same division. The Court also set dates on which Plaintiff was to respond to the Defendants’ Motion to Dismiss on file in both cases. On April 8, 2013, the parties appeared and submitted arguments on Defendants’ Motions to Dismiss. Defendants argued orally and in their motion that Plaintiff lacks standing, no case or controversy exists to support a declaratory judgment, Plaintiff is the wrong party to bring a quo warranto case, Plaintiff fails to allege any irreparable harm to support injunctive relief, Plaintiff fails to allege a basis for mandamus, and the claims against individual members of the City Council are redundant. Doc. 34. Plaintiff responded that jurisdiction is proper under K.S.A. 601202, and that “injury in fact is a factual question which should be developed through discovery.” Doc. 35, p. 4.1 The Court dismissed the Libertarian Party from the suit based on lack of standing, and took the standing issues regarding Mr. Terwelp and Mr. McIntosh under advisement. The Court is now ready to rule on the matter. STANDARD FOR A MOTION TO DISMISS The standard applicable to a motion to dismiss under K.S.A. 60-212(b)(6), failure to state a claim upon which relief can be granted, requires the Court to credit the well-pleaded facts of the non-moving party without crediting conclusory allegations. Gatlin v. Hartley, Nicholson, Hartley & Arnett, P.A., 29 Kan. App. 2d 318, 319, 26 P.3d 1284 (2001) (citing Grindsted Prods., Inc. v. Kan. Corp. Comm'n, 262 Kan. 294, 302-03, 937 P.2d 1 (1997)). Although a court is not required to accept conclusory allegations, the petition is to be liberally construed. Mitchell v. Wilfong, 4 Kan. App. 2d 231, 232, 604 P.2d 79 (1979). Only if a party can prove "no set of facts" is dismissal justified. Dye v. WMC, Inc., 38 Kan. App. 2d 655, 661, 172 P.3d 49 (2007). 1
Neither the Court, Defendants in this case, or the Defendants in the Leawood suit received Plaintiff’s Response that was allegedly sent out on March 7, 2013 until April 8, 2013, hours before the hearing on the Motion. The Response itself asserts only argues legal issues, and will be considered by the Court for what it is. 2
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A petition should not be dismissed for failure to state a claim unless, after reviewing the petition in the light most favorable to plaintiff and with every doubt resolved in plaintiff's favor, that, under plaintiff's pleadings, the plaintiff can prove no set of facts, either under plaintiff's theory or under any other possible theory, in support of plaintiff's claim which would entitle plaintiff to relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim. Halley v. Barnabe, 271 Kan. 652, 656, 24 P.3d 140 (2001) (citing Knight v. Neodesha Police Dep’t, 5 Kan. App. 2d 472, 620 P.2d 837 (1980)); see also Rector v. Tatham, 38 Kan. App. 2d 933, 936-37, 174 P.3d 445 (2008); Jones v. State, 279 Kan. 364, 366, 109 P.3d 1166 (2005). “Standing is a question of whether the plaintiff has alleged such a personal stake in the outcome of a controversy as to warrant the invocation of jurisdiction and justify exercise of the court’s remedial powers on his or her behalf.” Varney Bus. Serv. Inc. v. Pottroff, 275 Kan. 20, 30, 59 P.3d 1003 (2002). Plaintiff has the burden to establish standing to sue. Lujan v. Def. of Wildlife, 504 U.S. 555, 560-61 (1992). Standing must be demonstrated as to each form of relief sought by Plaintiff. Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). In order for an association to have standing to file suit, it must have members who have standing to sue, have interests sought to be protected that are germane to the association’s purpose, and neither the claim nor the relief requested requires participation of individual members. NEA-Coffeyville v. Unified Sch. Dist. No. 445, 268 Kan. 384, 387, 996 P.2d 821 (2000) (citing Hunt v. Wash. Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)). In order for an individual to have standing to file suit, a plaintiff must show injury in fact, causation, and redressability. Lance v. Coffman, 549 U.S. 437, 439 (2007). The injury must be a cognizable injury in fact that is concrete and particularized. State ex rel. D.S.M. v. Mealey, 33 Kan. App. 2d 947, 954, 112 P.3d 956 (2005) (“absent an injury specifically due to overbreadth, Mealey cannot establish a concrete and particularized injury in fact to justify standing for such a challenge.”). 3
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Further, “Kansas courts are constitutionally without authority to render advisory opinions, and a court’s jurisdiction to issue an injunction is dependent upon the existence of an actual case or controversy.” Shipe v. Pub. Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 165, 210 P.3d 105 (2009) (citing State ex rel. Morrison v. Sebelius, 285 Kan. 875, 897, 179 P.3d 366 (2008); Educ. Ass’n v. U.S.D. No. 312, 273 Kan. 875, 882, 47 P.3d 383 (2002)). If a plaintiff does not have standing to bring suit, then there is no justiciable case or controversy and a motion to dismiss must be granted. Kan. Bar Ass’n v. Judges of Third Judicial Dist., 270 Kan. 489, 490, 12 P.3d 1154 (2000). DISCUSSION I. IMPLICATION OF STANDING IN CONSTITUTIONAL CASES This case implicates both the United States and Kansas Constitutions. The Second Amendment to the United States provides that “a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” U.S. CONST. AMEND. II. The Kansas Constitution reads: “a person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.” KAN. CONST. BILL OF RIGHTS § 4 (2010). Because the Second Amendment is implicated, recent cases regarding the Second Amendment and standing are instructive as to the Kansas constitutional issues. Several courts have found that the denial of a license to carry or purchase a gun may constitute an injury sufficient to bring a case for violation of the Second Amendment. Peterson 4
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v. Martinez, 707 F.3d 1197, 1209 (10th Cir. 2013); Kachalsky v. Cacase, 817 F. Supp.2d 235, 248 (S.D.N.Y. 2011); Dearth v. Holder, 641 F.3d 499, 501 (D.C.Cir. 2011); Ezell v. City of Chicago, 651 F.3d 684, 695 (7th Cir. 2011); Parker v. Dist. of Columbia, 478 F.3d 370 (D.C. Cir. 2007). In all the cited cases, plaintiffs alleged in their complaints that they applied for and were denied permits to carry or purchase firearms, thus establishing a particular injury to themselves. Standing was established in Nat. Rifle Ass’n of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 188 (5th Cir. 2012), where plaintiff was an association challenging the constitutionality of a statute restricting the sale of firearms to persons over 21. The plaintiff plead that it had over 11,000 members in the 18-to-20-year-old age demographic, and the court held that “by prohibiting [federal firearms licensees] from selling handguns to 18-to-20-year-olds, the laws cause those persons a concrete, particularized injury – i.e., the injury of not being able to purchase handguns from [federal firearms licensees].” Id. at 191-92. Whether or not a plaintiff has standing to pursue a case alleging infringement on any constitutional right depends on the facts plaintiff alleges to show that defendant’s actions are impacting the plaintiff, and his exercise of a constitutional right, in some way. While “it is not necessary that [a] petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights,” he must allege some sort of specific harm that results from the statute. Steffel v. Thompson, 415 U.S. 452, 459 (1974). For example, the court in Wisconsin Carry, Inc. v. City of Madison, Wis., 2011 WL 2884091 at 2 (W.D. Wisc. July 15, 2011), initially dismissed the plaintiffs’ claims for lack of standing to challenge the defendants’ policy regarding open carry and prosecution because “any claim by plaintiffs that they would be arrested or prosecuted for carrying a firearm was 5
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speculative.” The court further explained that “[t]he problem with plaintiffs’ challenge to the unwanted police contact was that plaintiffs were not clear in the complaint whether the prospect of that [police] contact was altering their behavior.” Id. at 3. Plaintiffs then amended their complaint, revealing that they intend to openly carry firearms in the jurisdiction that limited their right to do so. Id. This description of particularized harm was sufficient. II. LAWS ADDRESSING OPEN CARRY IN KANSAS In addition to the constitutional right, Kansas has a statutory provision relating to a city’s regulations of the open carry of firearms: (a) No city or county shall adopt any ordinance, resolution or regulation, and no agent of any city or county shall take any administrative action, governing the purchase, transfer, ownership, storage or transporting of firearms or ammunition, or any component or combination thereof. Except as provided in subsection (b) and subsection (a) of K.S.A. 75-7c11, and amendments thereto, any such ordinance, resolution or regulation adopted prior to the effective date of this 2007 act shall be null and void. (b) Nothing in this section shall: (1) Prohibit a law enforcement officer, as defined in K.S.A. 22-2202, and amendments thereto, from acting within the scope of such officer's duties; (2) prohibit a city or county from regulating the manner of openly carrying a loaded firearm on one's person; or in the immediate control of a person, not licensed under the personal and family protection act while on property open to the public; (3) prohibit a city or county from regulating in any manner the carrying of any firearm in any jail, juvenile detention facility, prison, courthouse, courtroom or city hall; or (4) prohibit a city or county from adopting an ordinance, resolution or regulation requiring a firearm transported in any air, land or water vehicle to be unloaded and encased in a container which completely encloses the firearm or any less restrictive provision governing the transporting of firearms, provided such ordinance, resolution or regulation shall not apply to persons licensed under the personal and family protection act. K.S.A. 12-16,124 (emphasis added). As the Court has been informed by plaintiff’s counsel, the Kansas Legislature is considering a further amendment to this statute to further clarify a city’s 6
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inability to regulate the open carry of firearms. H.B. 2111, 2013 House, 85th Sess. (Kan. 2013). However, this fact alone is irrelevant to the Court’s analysis or the issue of standing. In this regard, Prairie Village’s ordinance relating to the criminal use of weapons reads, in relevant part: (a) Criminal use of weapons in knowingly: [...] (4) Carrying any pistol, revolver, shotgun, rifle or other firearm with similar characteristics, concealed or exposed on or about the person, or in or on any part or area of any air, land or water vehicle unless the pistol, revolver or other firearm is unloaded and encased in a container that completely encloses the pistol, revolver or other firearm, except when on the person’s land or in the person’s abode or fixed place of business; Prairie Village, Kan., Code, Ch. 11 Art. 1, § 10.1 (2012). This case also implicates constitutional rights of cities to exercise “home rule.” In pertinent part, KAN. CONST. ART. 12, § 5(b) and (d) (1961), reads: Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions except when and as the levying of any tax, excise, fee, charge or other exaction is limited or prohibited by enactment of the legislature applicable uniformly to all cities of the same class: Provided, That the legislature may establish not to exceed four classes of cities for the purpose of imposing all such limitations or prohibitions. Cities shall exercise such determination by ordinance passed by the governing body with referendums only in such cases as prescribed by the legislature, subject only to enactments of the legislature of statewide concern applicable uniformly to all cities, to other enactments of the legislature applicable uniformly to all cities, to enactments of the legislature applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction and to enactments of the legislature prescribing limits of indebtedness. [...] Powers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of selfgovernment. Whether this provision could or would allow cities to regulate open carry in the manner that is evident, which is disconcertingly broad in the face of both constitutional provisions and statutory preemption, cannot be addressed in the case at bar because of the standing issue.
7
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III. ORGANIZATIONAL STANDING OF THE LIBERTARIAN PARTY The Court has sustained Defendants’ Motion to Dismiss with regard to the Libertarian Party of Kansas.
As an organization, its members must have standing in order for the
organization itself to have standing. Plaintiff’s Petition purportedly identifies three plaintiffs: (1) The Libertarian Party of Kansas, (2) Al Terwelp, party chairman, and (3) Earl McIntosh, Second Amendment chairman. Doc. 1, p. 1. While listed as plaintiffs, it is clear that the individuals are listed only with respect to their organizational positions within the party itself, as reflected by the Petition: Plaintiff, Al Terwelp, is the acting Chairman of the Libertarian Party of Kansas, and a citizen of the State of Kansas, with an address of 12156 S. Stanley Rd., Overbrook, KS 66524, and should be served with any and all subsequent filings, papers, and documents, through its attorney, Lucas L. Thompson, at 5942 SW 29th Street, Suite A, Topeka, Kansas, 66614. […] Plaintiff, Earl McIntosh, is the Second Amendment Chair of the Libertarian Party of Kansas, and is a citizen of the State of Kansas, with an address of 4208 SW Stonybrook Dr., Topeka, KS 66610, and should be served with any and all subsequent filings, papers, and documents, through its attorney, Lucas L. Thompson, at 5942 SW 29th Street, Suite A, Topeka, Kansas, 66614. Doc. 1, ¶¶ 2, 3 (emphasis added). The Petition also begins “COMES NOW Plaintiff, a non-profit organization, by and through their attorney, and for its claims for relief against the defendants, alleges and states the following.” Doc. 1, p. 1 (emphasis added). The inclusion of the individual members’ officer status, the reference to Mr. Terwelp and Mr. McIntosh as “it,” and the singular reference to “Plaintiff” in the Petition, makes it apparent that it is only the Libertarian Party that is bringing this action, purportedly bolstered by the inclusion of Mr. Terwelp and Mr. McIntosh. Employing the individual plaintiffs in the Petition, however, cannot allow the Libertarian Party to survive the first prong of the organizational standing requirement, because it is apparent 8
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neither individual plaintiff has suffered, much less alleged, any particularized injury. Even if Mr. Terwelp and Mr. McIntosh were intended as separate, individual plaintiffs, they have failed to allege anything remotely individualized to save this action from a hypothetical injury. IV. STANDING OF THE INDIVIDUAL PLAINTIFFS As noted above, the only reference to the individual plaintiffs are those outlined above and a description of their membership in the Libertarian Party of Kansas. They also generally allege that “[t]his ordinance completely prohibits plaintiffs’ constitutional and statutory rights to open-carry a firearm in the City of Prairie Village.” Doc. 1, ¶ 28. The individuals neither asserted their presence in Prairie Village, whether they own firearms, or they have been subject to any punishment for a violation of the ordinance. Even Plaintiff’s Response omits any particularized injury and none was apparent during oral argument. At oral argument, counsel for plaintiff suggested (after inquiry by the Court) that discovery is needed to determine any injury to Mr. Terwelp or Mr. McIntosh. But plaintiffs are the masters of their pleading and if they do not know that they have suffered an injury and have failed to allege the same, no amount of discovery from an adverse party will change this glaring omission. Plaintiff’s Response to Defendants’ Motion states: “[s]imple discovery is likely to show several entries by Plaintiffs into one of [sic] both of the adversarial municipalities within the codified time period.” Doc. 35, p. 3 (emphasis added). The Court cannot conceive of any facts relating to the individual’s purported injury that would require discovery if plaintiffs failed to allege the same and counsel failed to even tell the Court that such an injury had occurred. More than likely the reason such an omission exists because this solely is a lawsuit filed by the organization, not the individuals. Moreover, it is incumbent upon any party to competently allege standing which is a 9
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threshold issue and completion of discovery should not be necessary for any plaintiff to decide whether he has been injured. Bonner Springs Unified Sch. Dist. No. 204 v. Blue Valley Unified Sch. Dist. No. 229, 32 Kan. App. 2d 1104, 1108, 95 P.3d 655 (2004) (“It has long been recognized that standing imparts justiciability and must be determined as a threshold issue.”). Presuming, despite no allegation, that an individual plaintiff sought to enter Prairie Village, or any other municipal jurisdiction containing any law with which that individual had a disagreement (such as a pit bull ordinance), would be insufficient to establish an injury-in-fact for standing purposes. The Bonner Springs case is instructive, because even if there are facts which the Court could conjure, it would not give an individual plaintiff standing. Id. at 1111. In Bonner Springs, the Court said: First, plaintiffs claim that they have standing because they shop in Johnson County and therefore are obliged to pay the new sales tax. This claim of standing fails for three reasons: (i) As noted by defendants, plaintiffs are under no compulsion to shop in Johnson County; we hold that plaintiffs cannot acquire legal standing by submitting themselves unnecessarily to a purported injury (volenti non fit injuria); (ii) this claim of injury is not unique to plaintiffs; in fact, payment of the new sales tax is precisely the injury suffered by anyone who shops in Johnson County and can only be redressed by the proper public official; (iii) payment of the tax is not an injury caused by the acts complained of; payment of the tax is an injury resulting from the levy and collection of the sales tax (which is not the subject of plaintiffs' challenge), not the distribution and receipt of the revenues generated by the tax (which are the subject of plaintiffs' challenge). Plaintiffs' first claim of standing fails as a matter of law. Id. (emphasis added). Here, even if Mr. Terwelp and Mr. Mcintosh have visited Prairie Village to incite a challenge to the ordinance, and intentionally open-carried firearms within that jurisdiction, it is insufficient to establish standing because a plaintiff may not acquire standing by unnecessarily submitting himself to injury.
10
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Although it is true that a plaintiff may gain standing by showing that he or she is refraining from an activity in order to avoid harm, Friends of the Earth, Inc. v. Laidlaw Env. Serv., Inc., 528 U.S. 167, 182-83 (2003) (sufficient standing alleged by members who would like to use the river but refrained from doing so because of defendant’s pollution thereof), even this minimal allegation is absent here. Indeed, plaintiff asserts that the Johnson County Sheriff will ignore the ordinance (precluding any threat of arrest), although it concludes that it can only exist, then, as “a harassing attempt to prevent individuals from open-carry within these jurisdictions.” Doc. 35, p. 6. Plaintiff’s Response further offered, as a basis for injury: It is clear even from Defendants’ motions to dismiss that the cities of Leawood and Prairie Village completely ban the open-carry of firearms within their incorporated boundaries. This clear violation of K.S.A. 12-16,124, et seq., creates an actual, imminent, concrete, and particularized injury-in-fact each and every time Plaintiffs, or any of its thousands of party members, enter into the municipalities’ boundaries. […] It is an altogether fair and reasonable inference that Plaintiffs and Plaintiff’s party members have suffered actual harm, Intrastate travel by Plaintiffs to the State’s busiest and most popular metroplex, is a reasonable inference under any set of facts. Simple discovery is likely to show several entries by Plaintiffs into one of [sic] both of the adversarial municipalities within the codified time period. This is certainly a fact or inference that must be resolved in Plaintiffs’ favor and one on which this case should not solely turn. […] The very logical inference, and in fact the injury from which Plaintiffs seek relief, is that Plaintiffs are prohibited from carrying holstered firearms within the Defendants’ jurisdictions thereby preventing Plaintiffs from their right of selfdefense. […] Plaintiffs herein are altogether, completely, concretely, and particularly prohibited from exercising their constitutional and statutory rights to openly carry firearms pursuant to Defendants’ ordinances. This is not a hypothetical injury. This is a new, repetitive injury every time Plaintiffs enter the jurisdiction of Defendants. Doc. 35. 11
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All of the foregoing demonstrates, at best, a series of legal conclusions because plaintiffs had it within their power to allege a particularized injury and failed to do so. An injury is particularized if it “affect[s] the plaintiff in a personal and individual way.” Lujan v. Def’rs of Wildlife, 504 U.S. 555, 560 n. 2 (1992). The individuals here suffer no more injury than any citizen who lives in the state who might enter the jurisdiction. Sweeping remarks that thousands, if not every person who enters Prairie Village, experience an infringement of the right to bear arms further indicates that plaintiff is an improper party to challenge the ordinance, as is further discussed, infra, in the context of quo warranto. An additional argument asserted is that the ordinance prohibits Mr. Terwelp and Mr. McIntosh from being able to defend themselves. However, aside from the drama associated with this, again, there is no evidence that either individual has visited Prairie Village, or that this hypothetical injury exists.2 Additionally, the injury must be actual or imminent, not conjectural, and “someday intentions – without any description of concrete plans, or indeed even any specification of when the someday will be – do not support a finding of the actual or imminent injury that our cases require.” Lujan, 504 U.S. at 564 (formatting omitted). Nevertheless, Plaintiff continues to assert legal arguments, not factual arguments, to support its Petition. Finally, because it is apparent that the individuals only assert the interest of a political party, as opposed to their individual interests, the organization’s particular cause or issue is insufficient. Id. at 563 (“respondents had to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities 2
Furthermore, there are many different methods in which one could defend himself. That the one method that the plaintiff seeks to make permissive is unavailable in Prairie Village does not leave Mr. Terwelp or Mr. McIntosh completely incapable of defending themselves. For all the Court knows, they do or do not possess a firearm or do or do not possess concealed carry permits. The Court will not guess as to what means they have at their disposal to protect themselves. 12
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abroad, but also that one or more of respondents' members would thereby be “directly” affected apart from their “‘special interest’ in th[e] subject.””) (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 739 (1972)). Like Mr. Terwelp and Mr. McIntosh, the Libertarian Party itself has asserted no facts leading to any inference of an injury suffered by the Prairie Village ordinance. Given the lack of facts leading to an injury suffered by the individual plaintiffs named in the Petition, as well as the Libertarian Party itself, the Defendants’ Motion to Dismiss is sustained as to all named individuals in the Plaintiff’s Petition. V. DECLARATORY RELIEF Defendants contend that because Plaintiff cannot establish an injury caused by Defendants, then its claim for a declaratory judgment should be dismissed. Plaintiff argues that the ordinance is confusing and uncertain, but does not address the sufficiency of its claim; rather, it continues with legal arguments on the merits. Generally, declaratory relief is reserved for those who have been injured. In re Estate of Keller, 273 Kan. 981, 984, 46 P.3d 1135 (2002) (“Declaratory relief is not to be entertained for the purpose of settling abstract questions, however interesting or important to the public generally, but is limited to correct errors injuriously affecting the appellant.”); Bd. of Cnty. Comm’rs of Reno Cnty. v. Asset Mgmt and Mktg. LLC, 28 Kan. App. 2d 501, 504, 18 P.3d 286 (2001) (“The function of a declaratory judgment action pursuant to KSA 60-1701 is to provide a speedy and flexible method for determining the rights and obligations of parties in cases of actual controversy where there is actual antagonistic assertion and denial of right.”). Since Plaintiff can assert no injury, it lacks standing to bring such an action. Plaintiff argues that Scott v. Unified Sch. Dist. No. 377, 7 Kan. App. 2d 82, 86, 638 P.2d 941 (1981), supports the proposition that the Court has jurisdiction to hear this case. Specifically, 13
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Plaintiff cites the following excerpt: District courts have no inherent appellate jurisdiction over official acts of administrative officials or boards except where legislature has made some statutory provision for judicial review; however, if such officials or boards act beyond the scope of their powers, and no appeal is provided for, relief may be sought through such equitable remedies as quo warranto, mandamus, or injunction. Plaintiff cites this passage out of context. The very next paragraph states that “[t]his action, however, was not brought as an equitable one, but was brought specifically under 42 U.S.C. 1983.” Id. The Kansas Court of Appeals was making the point that the district court’s assumptions regarding the sole statutory review powers of a district in that case were mistaken because of the listed equitable remedies that may occasion a district court review by illustration of the different types of actions available. That is not to say it thereby endorsed each of those actions as a basis for a review in that case. This case does not provide any authority for Plaintiff’s standing argument. VI. QUO WARRANTO Defendants attack Plaintiff’s quo warranto action because the Plaintiff is not the proper person to bring the same. Plaintiff asserts that jurisdiction is proper under K.S.A. 60-1202 (2012).3 However, Plaintiff fails to acknowledge Kansas law regarding quo warranto actions.
3
“Such action may be brought in the supreme court or in the district court in the following cases: (1) 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. (2) Whenever any public officer shall have done or suffered any act which by the provisions of law shall work a forfeiture of his or her office. (3) When any association or number of persons shall act within this state as a corporation, without being legally incorporated. (4) When any corporation does or omits acts which amount to a surrender or a forfeiture of its rights and privileges as a corporation, or when any corporation abuses its power or exercises powers not conferred by law. (5) For any other cause for which a remedy might have been heretofore obtained by writ of quo warranto at common law.” 14
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While Plaintiff is correct that a district court may hear constitutionality challenges to an ordinance, it is not the proper party to do so. In a case challenging an annexation ordinance, the court clearly stated that the attorney general is the appropriate party to challenge the same. Bd. of Cnty. Comm’rs of Cnty. of Sumner v. City of Mulvane, 43 Kan. App. 2d 500, 509-10, 227 P.3d 997 (2010) (“while a quo warranto action may be the proper vehicle to challenge a city’s annexation ordinances, the Board is not an authorized ‘driver.’ Rather, the authorized driver is the State, acting through a proper officer.”). K.S.A. 60-1203 provides that “[w]here the action is brought by a person claiming an interest in an office, franchise or corporation, or claiming an interest adverse to a resolution, ordinance, franchise, gift or grant, which is the subject of the action, it shall be prosecuted in the name and under the direction of such person, otherwise it shall be prosecuted in the name of the state by the attorney general or county attorney.”
As interpreted, however, our courts have
required a sufficient interest to warrant that an action be brought by an entity with standing. “Capacity in quo warranto to challenge the acts of public officials does not arise from the fact a person or persons are taxpayers, the question is whether they suffered some peculiar personal injury separate and apart from all other taxpayers of the city alike.” Fransham v. McDowell, 202 Kan. 604, 610, 451 P.2d 131 (1969) (plaintiffs had no capacity to sue in quo warranto to challenge the city’s sponsoring of a program). Plaintiff (who does not allege taxpayer status in Prairie Village) has not and cannot assert any injury that is particular to it and distinct from any other person who visits Prairie Village. Indeed, because every person who enters Prairie Village is affected by the ordinance, the attorney general is the proper person to bring an action in quo warranto to challenge the constitutionality of Prairie Village’s ordinance.
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VII. INJUNCTION Defendants argue that Plaintiff has not alleged a case for a permanent injunction, so the count should be dismissed.
Plaintiff argues that it will be able to show that an injunction is
warranted at the conclusion of this case, but offers no additional facts. To establish a claim for injunctive relief, a movant must show: (1) a substantial likelihood of eventually prevailing on the merits; (2) a reasonable probability of suffering irreparable future injury; (3) the lack of obtaining an adequate remedy at law; (4) the threat of suffering injury outweighs whatever damage the proposed injunction may cause the opposing party; (5) and the impact of issuing the injunction will not be adverse to the public interest. Downtown Bar and Grill, LLC, 294 Kan. 188, 191,273 P.3d 709 (2012). One cannot suffer irreparable injury or a likelihood of prevailing on the merits unless one has standing. Even on the Court’s invitation at oral argument, Plaintiff was unwilling to show any factual scenario that would allege injury to it by the ordinance. VIII. MANDAMUS Defendants argue that mandamus is inappropriate because Plaintiff fails to allege any basis for a remedy. Plaintiff responds that the Johnson County Sheriff has said he will proceed as if the ordinance does not exist and that this may prevent citizens from exercising their fundamental constitutional rights. Even this unverified statement, however, cannot create a case and controversy, such as if one of the party’s members might be prosecuted for an ordinance violation.4 Again, the harm Plaintiff alleges is no different than that which every citizen would suffer. Without more, Plaintiff has asserted no actual set of facts warranting mandamus. The Kansas Supreme Court has addressed a similar lack of standing in which a petition 4
The mere threat of such a violation dims when it is clear that “where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.” U.S. v. Black, 707 F.3d 531, 540 (4th Cir. 2013). Because Kansas permits open carry, an investigatory detention is not a likelihood. 16
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lacked assertion of a particularized injury to the plaintiffs, and held that: [T]he pleading shows upon its face that the plaintiffs are seeking to compel the defendants to proceed to perform certain alleged public duties under a statute enacted for the protection of the public welfare, public health, and public safety in the exercise of the police power of the state, and that nowhere in such pleading does it appear that they have any interest in the subject matter in litigation different than that of the public generally. Dennis v. State Bd. of Barber Exam’rs, 174 Kan. 561, 565, 257 P.2d 940 (1953), reaffirmed in Kan. Bar Ass’n v. Judges of Third Judicial Dist., 270 Kan. 489, 493, 14 P.3d 1154 (2000). “While mandamus will not ordinarily lie at the instance of a private citizen to compel the performance of a public duty, it has been held where an individual shows an injury or interest specific and peculiar to himself, and not one that he shares with the community in general, the remedy of mandamus and the other extraordinary remedies are available.” Stephens v. Van Arsdale, 227 Kan. 676, 683, 608 P.2d 972 (1980). Plaintiff simply cannot go forward on any of its claims unless it can establish a specific injury, particular to the persons named in the Petition or other members. IX. WHETHER LEAVE TO AMEND WILL CURE THE DEFICIENCY While ordinarily a deficiency in a petition might enable the plaintiff leave to amend to properly assert its claims, the Plaintiff in this instance cannot create what does not exist and, in the Court’s estimation, the effort would be futile because it cannot conceive of any set of facts that would create an injury in the circumstances presented.
The petition is replete with
allegations that are repetitive, conclusory and short on substantive injury of any kind. CONCLUSION For the foregoing reasons, the above titled case is hereby dismissed.
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IT IS SO ORDERED.
4/17/13 Date
/s/ David W. Hauber_________________ DAVID W. HAUBER District Court Judge, Div. 7
NOTICE OF ELECTRONIC SERVICE Pursuant to KSA 60-258, as amended, copies of the above and foregoing ruling of the court have been delivered by the Justice Information Management System (JIMS) automatic notification electronically generated upon filing of the same by the Clerk of the District Court to the e-mail addresses provided by counsel of record in this case. Counsel for the parties so served shall determine whether all parties have received appropriate notice, complete service on all parties who have not yet been served, and file a certificate of service for any additional service made. /s/ DWH
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