Kansas Attorney General Opinion 1992-120

ROBERT T. STEPHAN
ATTORNEY GENERAL September 14, 1992
ATTORNEY GENERAL OPINION NO. 92- 120
The Honorable Ben E. Vidricksen
State Senator, Twenty-Fourth District
713 N. 11th Street
Salina, Kansas 67401
Re: Cities and Municipalities--City-Manager Plan;
General Provisions--Commission-Manager Plan;
Abandonment of Plan; Election; Petition;
Retrospective Application of Amendment
Elections--Sufficiency of Petitions--Application to
All State and Local Elections; Opinion of County or
District Attorney; Retrospective Application of
Amendment
Synopsis: K.S.A. 12-1019 authorizes a petition seeking to
bring to an election a question regarding a change
in the form of government for a city. K.S.A. 1991
Supp. 25-3601, as amended by L. 1992, ch. 194, §
2, establishes in part the requirements for such
petition. The amendment adopted in L. 1992, ch.
194, § 2 is merely procedural in nature, and
therefore may be applied retrospectively to
petitions being circulated prior to April 30, 1992,
the effective date of the amendment. A petition
drafted on March 31, 1992, should, prior to its
circulation, be submitted to the county attorney
for an opinion regarding the legality of the form
of the question unless such retrospective
application of the requirement results in a
manifest injustice. Cited herein: K.S.A. 12-184;
12-1019; K.S.A. 1991 Supp. 25-3601, as amended by
L. 1992, ch. 194, § 2; U.S. Const., art. 1, §
10.

Dear Senator Vidricksen:
As senator for the twenty-fourth district, you request our
opinion regarding whether a petition seeking to bring to a
vote of the electorate a question concerning a change in the
form of city government must be reviewed by the county
attorney prior to its circulation.
According to the information provided, the city of Salina
has operated under the commission-manager form of government
since 1921. On March 31, 1992, citizens of Salina began
circulating a petition as authorized under K.S.A. 12-1019
seeking to bring about a change in the form of city government
to the mayor-council form of government. After that time,
amendments to statutes regarding the sufficiency of petitions
went into effect. One such amendment requires that before
such petitions are circulated, "a copy thereof containing the
question to be submitted shall be filed in the office of the
county attorney . . . for an opinion as to the legality of the
form of such question." K.S.A. 1991 Supp. 25-3601, as amended
by L. 1992, ch. 194, § 2.
K.S.A. 12-1019 provides that any city of the state that has
for four or more years operated under a commission - manager
form of government may abandon such form of government after
approval by a majority of the electorate voting on a
proposition to abandon such form of government and accept the
provisions of the mayor and council form of government law.
The proposition may be submitted to the qualified electors of
the city upon adoption by the governing body of the city of a
resolution providing for the submission of such question or
upon the certification of a petition requesting the submission
of such question. K.S.A. 12-184.
"(c) Any petition requesting the
submission of a question hereunder shall
be filed with the county election officer
of the county in which the city is
located. Such petition shall conform to
the requirements of article 36 of chapter
25 of the Kansas Statutes Annotated and
amendments thereto, and its sufficiency
shall be determined in the manner therein
provided and shall be certified to the
city clerk by the county election
officer." Id.

Further, K.S.A. 1991 Supp. 25-3601, as amended by L. 1992,
ch. 194, § 2, provides in part:
"When under the laws of this state a
petition is required or authorized as a
part of the procedure applicable to the
state as a whole or any legislative
election district or to any county, city,
school district or other municipality, or
part thereof, the provisions of this act
shall apply, except as is otherwise
provided in the statute providing for such
petition."
Therefore, it is clear that the petition circulated pursuant
to K.S.A. 12-184 is subject to the requirements set forth in
K.S.A. 25-3601 et seq. Prior to April 30, 1992, there was
no requirement that the petition be approved by the county
attorney prior to being circulated. However, the following
provision became effective April 30, 1992:
"Before any petition other than a recall
petition as described in K.S.A. 25-4301
et seq. and amendments thereto,
requesting an election in any political or
taxing subdivision of the state is
circulated, a copy thereof containing the
question to be submitted shall be filed in
the office of the county attorney of the
county or district attorney of the
district in which all or the greater
portion of the political or taxing
subdivision is located for an opinion as
to the legality of the form of such
question. The county or district attorney
shall within five calendar days following
the receipt of such question furnish a
written opinion as to the legality of the
form of the question submitted." K.S.A.
1991 Supp. 25-3601, as amended.
Generally, a statute will operate prospectively unless its
language clearly indicates that the legislature intended that
it operate retrospectively. State v. Sylva, 248 Kan. 118,
Syl. Q 1 (1991). This rule is normally applied when an
amendment to an existing statute or a new statute is enacted
which creates a new liability not existing before under the
law or which changes the substantive rights of the parties.

Jackson v. American Best Freight System, Inc., 238 Kan 322,
324 (1985). Where a statute is merely procedural or remedial
in nature, however, it may be applied retrospectively if it
does not affect the substantive rights of a party. Sylva,
supra. Procedural changes have retrospective effect unless
the legislature specifically dictates otherwise or a manifest
injustice is created. Merchants National Bank v. Safrabank
(California), 776 F.Supp. 538, 540 (D.Kan. 1991). In State
v. Chapman, 15 Kan.App.2d 643 (1991), the Kansas Court of
Appeals, citing State ex rel. v. Ind. Comm., 228 N.E.2d
621 (Ohio 1967), acknowledged that "[i]t is doubtful if a
perfect definition of 'substantive law' or 'procedural law'
could be devised. However, the authorities agree that, in
general terms, substantive law is that which creates duties,
rights, and obligations, while procedural or remedial law
prescribes methods of enforcement of rights or obtaining
redress. [Citations omitted.]" Chapman, 15 Kan.App.2d at
646. See also, Stevenson v. Topeka City Council, 245
Kan. 425, 427 (1989).
The pertinent amendment to K.S.A. 1991 Supp. 25-3601 does not
create a right, nor does it affect the substantive rights of a
party. The amendment does not result in a violation of
section 10 of article 1 of the United States Constitution.
["To violate the constitutional proscription of ex post facto
laws, a law must be (1) penal or criminal in nature; (2)
retrospective in application; and (3) adverse to the offender
because it may impose increased punishment." Wilson v. U.S.
Parole Commission, 760 F.Supp. 183, 185 (D. Kan. 1991).]
K.S.A. 1991 Supp. 25-3601, as amended, establishes in part the
requirements for a petition as authorized in K.S.A. 12-1019
seeking to bring to an election a question regarding a change
in the form of government for a city. The amendment adopted
in L. 1992, ch. 194, § 2 is merely procedural in nature, and
therefore may be applied retrospectively to petitions being
circulated at the time the amendment became effective.
Therefore, a petition drafted on March 31, 1992, should, prior
to its circulation, be submitted to the county attorney for an
opinion as to the legality of the form of the question unless
such retrospective application of the requirement results in a
manifest injustice.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Richard D. Smith
Assistant Attorney General
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