Early August, a local citizen's group submitted three petitions for certification to the election office. One was by the city, but the election office had to validate the signatures and ensure each petition met a valid signature threshold.
While copies of the petitions were obtained by various records requests by the city and other groups, it was never fully clear what the language circulated to signers was until the petitions were submitted. Indeed, many people reported signing the petitions without the petition language being displayed. Once they were submitted, though, we confirmed the actual language and content of the petitions. To this date, I haven't seen the petition language published anywhere by the organization that created them.
The city determined numerous flaws within these petitions brought their legality into question. Given these apparent issues, the city brought the issue before the district court for a declaratory judgment on these questions.
The Rezoning Petition
The Rezoning petition was presented to residents to limit Accessory Dwelling Units and rezoning in single-family districts. Despite this presentation to the public, the petition was flawed in several ways, making its efficacy questionable. First and foremost, despite declaring itself as something that would block ADUs, the petition didn't regulate ADUs in the ordinance language.
Additionally, as the district court determined, the petition fell squarely into a type of ordinance not permitted by state statute to appear on an initiative petition. This aligned with the case law cited in the judge's ruling. Ordinances dealing with zoning are considered "administrative ordinances" (see 12-3013(e)(1)) and are not allowed on an initiative petition.
A candidate endorsed by Stop Rezoning recently stated at a council meeting that they believed this petition would take "rezoning off the table" for ten years. This is, in fact, not the case if the petition is administrative, which the district court affirmed. So, the candidate was incorrect in believing that the petition took anything related to zoning off the table.
Arguments were made in court to various aspects of this petition and how it relates to administrative law. The judge issued a ruling relying on three main guidelines. One was that the city already has a comprehensive plan, and the rezoning petition would hamstring that plan, which implies it's not new law (a legislative ordinance) because it affects existing law. Having a comprehensive plan directs how rezoning works in a city; further restricting rezoning, redefining zoning, etc., interferes with a comprehensive plan as intended in Kansas.
Second, planning and zoning require specialized knowledge to draft and write. This was exemplified in Exhibit G (pp 41-49) from the city planner, a land use attorney, in the city's filings. As I mentioned in an earlier post, the unintended consequences stemming from the flaws in the rezoning petition were numerous because, likely, the drafters lacked the knowledge required to write land use ordinances. Indeed, if the drafters knew of the nature of administrative and legislative ordinances and how they are governed by Kansas law, perhaps this petition never would have been written and presented as such.
Lastly, the court found that the petition was administrative because the petition was an issue of statewide concern. The state legislature has delegated planning and zoning powers to city governments in K.S.A 12-741. When the state delegates powers like this, it "tends to show that the actions [stemming from said powers] are administrative."
The Abandonment Petition
The abandonment petition was deemed as fit for the ballot. The form of the petitions, the judge determined, substantially complied with state law despite its many technical flaws, and the petition's substance complied with all necessary laws. Note that the idea of "substantial compliance" applies to the form (arrangement, required fields, required language, etc.) of a petition, not its legal substance (what the petition is trying to accomplish).
The petition may proceed to some future ballot, barring some extenuating circumstance I am unaware of while writing this post. However, it will not be on the November ballot.
At Stop Rezoning petition signings, this petition was presented as "End Strong Mayor," but taken alone; it doesn't do anything to the mayoral system or our local government.
This ballot item, if passed, would not change how the city government is run because no government is given to replace it. That said, I advise opposing ballot measures that don't make sense to vote yes on. I would campaign no against such a measure on the ballot, and I intend to.
Vote no against abandoning the government of Prairie Village.
The Adoption Petition
The adoption petition is the petition that Stop Rezoning intended to change the form of Prairie Village city government. This would change our form of government from a council-mayor form to a council-mayor-manager form. Despite having a council-mayor form of government effectively, Prairie Village already has a council-mayor-manager form of government via a series of modifications it has made to the council-mayor form since its inception.
The real kicker had little to do with minutia about "strong mayors" and "weak mayors." The most impactful part of this petition was that it would cut the council in half, recall everyone elected in 2021, and only seat the six people who would be elected this November (including yours truly). Stop Rezoning and its associated members and allies recruited and bankrolled six campaigns this election cycle. Coincidence?
The judge found that this petition ran afoul of Kansas law for two reasons. First, the petition did not define term length for the office of mayor in the newly proposed government – a necessary thing to have (K.S.A 12-1039(b)). Secondly, and more fundamentally, the petition proposed electing members of a proposed government using the existing government's election process while proposing adopting the government. Kansas statute (K.S.A 12-1039(c)) requires these to happen in separate elections.
If a majority of the votes cast shall be in favor of adopting the commission-manager, mayor-council manager or council manager plan of government, then at the next regular city election the governing body of the city shall be elected as provided in the resolution or petition.
This may seem like one of those gotcha technicalities, but I can assure you it's not. When you vote to elect a person to office, the nature and term of that office must be set at the time of the election. Consider this example.
- The Adoption petition is set to a ballot. Seeing they may be cut from office, a councilor decides to run for a seat on the new council.
- The election is held.
- The Adoption proposal fails, but the councilor who ran thinking they'd be cut wins their race.
- The councilor who ran now has two seats on the council. The one that wasn't cut because the adoption proposal failed, but also the one they just won.
This absurdity is made possible by the fact that the petition opens the possibility that a person is up for election for one of two possible offices pending another item on the ballot. This scenario creates the possibility for incoherent results like these. This is why the state statute is how it is.
Was the City Trying to "Run Out the Clock?"
Based on signatures submitted to the election office, two out of three petitions had collected all the submitted signatures by late June or early July. Those petitions could have been submitted then. Instead, the petition circulators decided to wait about a month longer to submit them. These petitions were submitted later and during a primary election when the election office presumably did not have the manpower to certify signatures because it was running an election. The city was forced to wait until the last minute before filing a petition for declaratory judgment about the legal flaws the petitions contained. Had the petitions been submitted in early July instead of August, there would have been plenty of time for this process to play out for the Abandonment/Adoption petitions, but they weren't.
Regardless, if any petition is legally viable, it will go to a ballot. Which ballot is based on the time it is submitted and how long it takes to be certified and determined as fit for the ballot. Should the rezoning petition have been found fit for the ballot, which it was not, it would have gone to a ballot. I note, though, that the judge found that the rezoning petition was not fit for the ballot before any hard cutoff from the election office. The cutoff applied to the other two submitted petitions, which could have been submitted earlier.
So What's Next?
We are now proceeding to a standard November election. Six seats are up this fall, and six seats are not. As for the legal stuff, I don't know what's next. The district court has made its decision, and for now, that is where things stand.
Full Amended Memorandum Decision
You can read the entire decision for yourself here: