Kansas Bar Journal
80 J. Kan. Bar Assn 7, 29 (2011).
Void Enactments of the Kansas Legislature
Kansas Bar Journal Volume 80, July 2011 80 J. Kan. Bar Assn 7, 29 (2011) Void Enactments of the Kansas Legislature David E. Pierce 
The Kansas Constitution imposes invalidating conditions on every law enacted by the Kansas Legislature. Article 2, Section 16 of the Kansas Constitution commands that "[n]o bill shall contain more than one subject" and the subject of the bill must be "expressed in its title."(fn1) Enactments that fail to satisfy these conditions are void.
The operation of Article 2, Section 16 is a matter of importance to every lawyer, legislator, and citizen of Kansas. The importance to the lawyer is the potential winner-take-all defense that is provided when an otherwise valid statute within the Kansas Statutes Annotated is the product of a legislative process that violates Article 2, Section 16. For example: Your client is guilty as hell. The prosecutor is able to establish each element of the crime as set out in the applicable statute. Your client's rights have been scrupulously honored by law enforcement. It appears to be an open-and-shut case. Before proceeding to the plea bargaining table, consider whether the statute under which your client is charged complies with Article 2, Section 16. If the prosecutor is relying upon a statute that is the product of a bill containing more than one subject, or the subject is not adequately stated in the title of the bill, your client walks.(fn2)
Article 2, Section 16 has also had significant impact in the civil context. For example, entire taxing systems have been struck down for violating Article 2, Section 16.(fn3) An act repealing a movie censorship board was held to be void, thereby perpetuating the board.(fn4) An act authorizing an increase in school district budgets was held void because it was included in a bill with appropriations measures.(fn5) An act providing funding to the Kansas Law Enforcement Training Center was struck down because it was included in a bill addressing another subject.(fn6) As will be seen by the end of this article, even the common law rule against perpetuities is likely to again haunt the Kansas practitioner because of Article 2, Section 16.(fn7)
For the Kansas(fn8) lawyer the message is clear: To competently represent your client, research of any Kansas statute must begin with an inquiry into the legislative process by which it was enacted. This requires, at a minimum, an examination of the Kansas Session Laws that resulted in the statute to determine whether the bill giving rise to the act creating the statute contained "more than one subject" and whether the subject was properly "expressed in its title." Depending upon what the Session Laws reveal, further legislative process research may be required. If you are not currently following this research process, you may be failing to discover a major risk or defense your client needs to consider.
Article 2, Section 16 is of major importance to legislators because their work may be nullified by legislative maneuvering and drafting that violate the single subject, express title, requirements. This ties in closely with the importance of the issue to the citizens of Kansas. Article 2, Section 16 was adopted because the citizenry deemed it necessary to restrict how the Kansas Legislature does its business. Most often this is expressed as abhorrence for "logrolling" and "riders" in the legislative process.(fn9)
"Logrolling" refers to the combining of subjects in a single bill to enhance its likelihood of passage. Although subject "A" may not garner the majority vote needed for passage, and subject "B" is similarly unpopular, perhaps combining the two into a single bill will attract enough votes for each to achieve the majority necessary for passage. The effect is that neither subject A nor B would, on its own, be enacted, but once joined they both become law. The one-subject rule prevents this practice whether the combination occurs prior to introduction of the bill or through amendment as a bill moves through the legislative process. Of course, trading can still occur by legislators agreeing to support stand-alone one-subject bills, but this forces legislators to cast their vote for each separate bill while assuming the risk of the deals they make. The legislative process is long, arduous, and unpredictable; passing two bills is generally twice as difficult as passing one. Article 2, Section 16 strikes an important balance between the executive and legislative branches of government. Article 2, Section 14(b) of the Kansas Constitution gives the governor line item veto power only for appropriation bills.(fn10) The one-subject rule is therefore necessary to ensure the governor is able to approve or veto non-appropriation bills based upon their individual merit.(fn11)
"Riders" are the other pock on the legislative process Article 2, Section 16 is designed to avoid. A rider is a legislative proposal, typically unpopular in its own right, appended to a highly popular bill, usually an appropriation bill, that is very likely to pass. The interrelationship of Sections 14 and 16 of Article 2 is fully revealed in State ex rel. Stephan v. Carlin(fn12) where a rider amending substantive limitations on school district budgets was combined with the Legislature's final appropriation bill.(fn13) Although the court held the governor lacked the constitutional authority under Article 2, Section 14 to exercise line item veto power over this non-appropriation measure, the governor did not have to rely upon the veto power because the non-appropriation measure constituted a separate subject that was void under Article 2, Section 16.(fn14) If the legislature cannot constitutionally include more than "one subject" in a single bill, the governor is enabled, and forced, to approve or reject bills on their individual merit.
Most courts and commentators agree that the "good government"(fn15) goals of constitutional provisions like Article 2, Section 16 are worth pursuing and create a legislative process superior to that of the federal government.(fn16) Most citizens would agree with the basic premise for Article 2, Section 16: legislative proposals should be considered individually and legislators, and the governor, should be allowed - indeed required - to accept or reject each legislative proposal on its particular merits.(fn17)
Another condition imposed by Article 2, Section 16 is that the general content of the legislative proposal must be adequately revealed in the title of the bill. This requirement is designed to alert legislators, and the public, to the general substantive contents of a bill.
As this article reveals, it is likely the Kansas Legislature has passed many statutes in recent years which are open to an Article 2, Section 16 challenge. The most recent judicial interpretation of Article 2, Section 16 may be contributing to lax legislative practices that run counter to Article 2, Section 16. The discussion that follows provides a summary of the basic law practitioners, legislators, and citizens need to consider when evaluating Kansas statutes under Article 2, Section 16.
II. Historical Background
As originally proposed at the Kansas Constitutional Convention by the Committee on the Legislative Department, Article 2, Section 16 stated: No bill shall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended unless the new act contain the entire act revived, or the section or sections amended, and the section so amended shall be repealed.(fn18)
This was the form in which Article 2, Section 16 appeared in the Constitution of Kansas adopted by the Wyandotte Convention on July 29, 1859.(fn19) The language mirrors that found in Article 2, Section 15 of the Ohio Constitution.(fn20) However, Kansas courts have not looked to Ohio law for guidance in interpreting Article 2, Section 16. Instead, the Kansas Supreme Court made an early and fundamental departure from Ohio's interpretation that the one-subject, clear-title requirements were merely "directory" instead of "mandatory."(fn21) Kansas has consistently held that Article 2, Section 16, like other limitations stated in the Kansas Constitution, are "mandatory."(fn22)
Following a 1969 study and report by the Citizens' Committee on Constitutional Revision(fn23) the House and Senate considered the Committee's recommendations and, through House Concurrent Resolution No. 1060,(fn24) adopted amendments to the legislative article of the Kansas Constitution that were approved by Kansas voters in the 1974 general election.(fn25) Included were amendments to Article 2, Section 16 that the Committee recommended to exempt appropriations bills, and bills for the codification and revision of laws, from the one-subject rule.(fn26) The Article 2, Section 16 recommendations were modified by the 1974 Legislature that sought to "eliminate the root of some unnecessary litigation" by deleting the word "clearly" and adding: "The provisions of this section shall be liberally construed to effectuate the acts of the legislature."(fn27) No revisions to Article 2, Section 16 have been made since 1974.
III. The Presumption of Constitutionality
The Kansas Supreme Court has consistently taken a deferential approach when applying Article 2, Section 16 so as to uphold legislative...