## Facts

- In 2007, the Kansas Legislature enacted the Kansas Funeral Privacy Act, which repealed the prior Kansas Funeral Picketing Act and included new restrictions on protests near funerals.
- During the legislative session, the Kansas Attorney General issued an opinion that the act’s funeral-protest provisions were constitutional.
- The act contained a “judicial trigger” provision making the funeral-protest provisions inoperative unless and until the Kansas Supreme Court or a federal court determined those provisions were constitutional.
- The act also included a “judicial review” provision directing the Attorney General to initiate litigation to obtain a ruling on the constitutionality of the funeral-protest provisions.
- Instead of filing the directed suit to obtain a declaration that the funeral-protest provisions were constitutional, the Attorney General (on relation of the State) filed an original action in quo warranto in the Kansas Supreme Court against Governor Kathleen Sebelius.
- The Attorney General challenged the constitutionality of the judicial-trigger mechanism itself, arguing it violated the Kansas separation-of-powers doctrine by attempting to force (1) litigation seeking a form of relief Kansas courts cannot provide and (2) a judicial declaration on legislation that was not yet operative.
- The case proceeded directly in the Kansas Supreme Court as an extraordinary action addressing whether one branch had significantly interfered with another through the challenged statutory design.

## Issues

1. Whether the legislature’s “judicial trigger” mechanism—conditioning the effectiveness of statutory provisions on a prior judicial determination of constitutionality—violated Kansas separation-of-powers limits by calling for an advisory ruling rather than a case-or-controversy adjudication.
2. Whether the legislature could direct the Attorney General to file litigation seeking such a pre-effectiveness constitutional determination, despite the Attorney General’s role as an officer of the court and duties of good-faith legal judgment.

## Decision

- The Kansas Supreme Court held the judicial-trigger provision unconstitutional under Kansas separation-of-powers principles.
- The court reasoned that Kansas courts determine constitutionality only when the question arises in an actual case or controversy; they do not issue advisory opinions on legislation that is not yet operative.
- The court concluded that the statutory plan significantly interfered with the judiciary by attempting to use the courts as a mechanism to approve legislation before it takes effect.
- The court also rejected the idea that the legislature may compel the Attorney General to pursue an action that, in the Attorney General’s good-faith legal judgment, would seek a constitutionally unavailable remedy or conflict with professional duties to the court.
- In the quo warranto proceeding, the court granted relief by invalidating the judicial-trigger mechanism (and related compelled-review design) to the extent it violated separation of powers.

## Legal Principles

- Kansas courts have power to decide constitutional questions only when properly presented in an actual case or controversy; they may not issue advisory opinions.
- A separation-of-powers violation occurs when one branch significantly interferes with the operations of another; Kansas evaluates interference by considering the nature of the power exercised, the degree of control, the objective sought, and the practical result.
- Although the Kansas Constitution identifies the Attorney General as an executive officer and the legislature may assign many duties by statute, the legislature may not intrude on the Attorney General’s responsibilities as an officer of the court.
- The legislature cannot require the Attorney General to file a lawsuit if, in good faith, the Attorney General concludes the action would seek a constitutionally improper form of judicial relief or would conflict with ethical duties owed to the court.
- Quo warranto is an extraordinary remedy that may be used to challenge unlawful exercises of public power, including alleged separation-of-powers violations.

## Conclusion

*State of Kansas ex rel. Morrison v. Sebelius* involved an original quo warranto action in which the Kansas Attorney General attacked a statutory “judicial trigger” that kept funeral-protest provisions inoperative until a court declared them constitutional and directed the Attorney General to obtain such a ruling. The Kansas Supreme Court held the trigger scheme violated separation of powers because it attempted to induce an advisory constitutional determination outside an actual case or controversy and improperly constrained the Attorney General’s professional, court-facing duties by compelling litigation seeking a constitutionally unavailable remedy.


State of Kansas ex rel. Morrison v. Sebelius, 179 P.3d 366 (Kan. 2008)