                  IN THE SUPREME COURT OF THE STATE OF KANSAS

                                             No. 115,982

                               BRADLEY E. AMBROSIER, CHIEF JUDGE,
                                 KANSAS 26TH JUDICIAL DISTRICT;
                              LINDA P. GILMORE, DISTRICT JUDGE; AND
                              CLINTON B. PETERSON, DISTRICT JUDGE,
                                           Petitioners,

                                                   v.

                   SAM BROWNBACK, GOVERNOR OF THE STATE OF KANSAS,
                                    Respondent.


                                   SYLLABUS BY THE COURT

        The 90-day time limit for the governor's appointment of a district magistrate judge
under K.S.A. 2015 Supp. 25-312a is directory rather than mandatory. It thus outlines a
discretionary duty not subject to mandamus.


        Original action in mandamus. Mandamus denied. Opinion filed July 29, 2016.


        Pedro L. Irigonegaray and Elizabeth R. Herbert, of Irigonegaray & Associates, of Topeka, were
on the petition for petitioners.


        Brant M. Laue, of the office of the Governor, was on the response for respondent.


The opinion of the court was delivered by


        BEIER, J.: This original mandamus action brought by the chief judge and two
district court judges of the 26th Judicial District of Kansas against Governor Sam
Brownback asks this court to compel the governor to appoint an interim district
magistrate judge immediately under the authority of K.S.A. 2015 Supp. 25-312a.


                                                   1
        We hold that a 90-day time limit set out in the statute is directory rather than
mandatory under our precedent. This means that the timing of the governor's appointment
is discretionary rather than ministerial. Mandamus cannot be invoked to compel a
discretionary act. The governor may therefore, consistent with his stated intention, wait
for the result of the primary election on August 2, 2016, before he appoints the magistrate
judge sought by petitioners.


                           FACTUAL AND PROCEDURAL BACKGROUND


        District Magistrate Judge Tommy B. Webb was one of five magistrates in the 26th
Judicial District until his retirement on February 19, 2016. The governor received
statutorily required notice of Judge Webb's planned departure from the bench on
February 5, 2016. See K.S.A. 2015 Supp. 25-312a (clerk to provide notice of vacancy).


        The governor informed Chief Judge Bradley E. Ambrosier that day that the
governor was accepting applications to fill the vacancy and that an interim magistrate
judge would be appointed within the 90-day period prescribed in K.S.A. 2015 Supp. 25-
312a.


        After receiving applications, the governor wrote a letter to the applicants dated
May 25, 2016, i.e., after expiration of the 90 days. The letter stated:


        "This is to inform you that I have decided not to make an appointment to the position at
        this time. Instead, I will defer to the voters of Haskell County, who will have the
        opportunity to vote on the position in the August 2nd primary election.


                "The filing deadline to participate in the election for this position is June 1."




                                                      2
       Counsel for petitioners contacted the governor's office on June 13, 2016, and the
governor's office confirmed the governor's intention to "revisit" the vacancy after the
primary election.


       Chief Judge Ambrosier, District Judge Linda P. Gilmore, and District Judge
Clinton B. Peterson filed this petition for writ of mandamus on June 15, 2016. At the
time, four Republican candidates had filed for election to the vacant magistrate judge
position. Those candidates will be on the ballot in the primary election on August 2.


       The petition specifically seeks a writ requiring the governor to "immediately
appoint an interim district magistrate judge for Haskell County." Petitioners allege the
governor "has failed, and in fact refused, to appoint a successor district magistrate judge,
in violation of [his] duty" under K.S.A. 2015 Supp. 25-312a, which states that "[a]ny
appointment made by the governor . . . shall be made within 90 days following receipt of
notice from the clerk of the supreme court." The petitioners also seek reimbursement of
their reasonable attorney fees.


       This court ordered the governor to respond to the petition, which he did on July
11, 2016. The governor advances four arguments on the merits: (1) the 90-day time limit
is directory rather than mandatory; (2) his general appointment duty is discretionary
rather than ministerial; (3) the relief sought by petitioners would violate the separation of
powers; and (4) dismissal is appropriate under the doctrine of constitutional avoidance.


                                        DISCUSSION


       Because, as detailed below, we decide this case in the governor's favor on the basis
of his first argument, we need not reach, and express no opinion on the validity of, his


                                              3
remaining arguments. Petitioners' request for attorney fees is rendered moot, and we will
not address it.


        Before turning to the merits of the governor's first argument, we observe that the
parties do not appear to contest the advisability of this court's exercise of discretionary
concurrent jurisdiction in this case or the petitioners' standing to bring this action. Given
this lack of controversy, we touch upon these two preliminary considerations only briefly.
See Peterson v. Ferrell, 302 Kan. 99, 102-03, 349 P.3d 1269 (2015) (subject matter
jurisdiction, including component of standing, may be raised at any time, on court's own
initiative).


        Article 3, § 3 of the Kansas Constitution grants original jurisdiction in proceedings
in mandamus to the Supreme Court. This jurisdiction is discretionary and concurrent; the
writ also may be sought in lower courts. See State v. Becker, 264 Kan. 804, 807, 958 P.2d
627 (1998); see also K.S.A. 60-801 et seq.; Manhattan Buildings, Inc. v. Hurley, 231
Kan. 20, 26, 643 P.2d 87 (1982). To support an original action in this court, a petitioner is
required to state "the reason why the action is brought in the appellate court instead of in
the district court." Kansas Supreme Court Rule 9.01(b) (2015 Kan. Ct. R. Annot. 88); see
Mobil Oil Corporation v. McHenry, 200 Kan. 211, 242, 436 P.2d 982 (1968). Petitioners
have done so here. They assert that the delay inherent in beginning this litigation in
district court and the statewide importance of the petition's subject matter justify its filing
in the Supreme Court rather than in Shawnee County District Court.


        Both of petitioners' points are well taken. We have previously considered judicial
economy, the need for speedy adjudication of an issue, and avoidance of needless appeals
when evaluating whether to exercise discretionary, concurrent jurisdiction over an
original action. See State ex rel. Stephan v. Kansas House of Representatives, 236 Kan.
45, 53, 687 P.2d 622 (1984) ("Without question, if this court declines to exercise
jurisdiction in this action, it will be faced with the identical issue in a subsequent appeal

                                               4
from an action before the district court."); see also Long v. Board of Wyandotte County
Comm'rs, 254 Kan. 207, 212, 864 P.2d 724 (1993) ("It is only where an issue of law
affects public officials, presents an issue of great public importance and significant state
interest, and requires a speedy adjudication that mandamus is an appropriate and proper
means to decide the issue."); State, ex rel., v. State Highway Comm., 132 Kan. 327, 334-
35, 295 P. 986 (1931) ("The use of mandamus to secure a speedy adjudication of
questions of law for the guidance of state officers and official boards in the discharge of
their duties is common in this state."). In addition, this case will define a legislatively
imposed duty of the governor, a constitutional officer and the leader of the executive
branch of state government. The governor's timely performance of the duty at issue, as
petitioners emphasize, affects the function, fairness, and efficiency of the coequal judicial
branch in its service to Kansas citizens. This case thus presents an important public
question of statewide importance appropriate for this court's attention in the first instance.
See State ex rel. Stephan v. Finney, 251 Kan. 559, 568, 836 P.2d 1169 (1992)
(interpretation of governor's constitutional authority appropriate for original action filed
in Supreme Court); see also Manhattan Bldgs., 231 Kan. 20, Syl. ¶ 4 (mandamus "proper
remedy where the essential purpose of the proceeding is to obtain an authoritative
interpretation of the law for the guidance of public officials in their administration of the
public business").


       Turning to standing, this court has allowed original actions in mandamus when the
petitioner demonstrates a need "'to secure a speedy adjudication of questions of law for
the guidance of state officers and official boards in the discharge of their duties.'" Kansas
Bar Ass'n v. Judges of the Third Judicial Dist., 270 Kan. 489, 498, 14 P.3d 1154 (2000).
And the court has determined such guidance questions when the action was brought by
state or political actors other than the attorney general on behalf of the State. See Board
of Sedgwick County Comm'rs v. Noone, 235 Kan. 777, 779-80, 682 P.2d 1303 (1984)
(action in mandamus against district court judge brought by board of county
commissioners to secure remittance of fines appropriate vehicle for the guidance of

                                               5
public officials); see also Wilson v. Sebelius, 276 Kan. 87, 88, 90-91, 72 P.3d 553 (2003)
(action in mandamus against governor brought by Democratic Party of Shawnee County
challenging constitutionality of statutory scheme decided in original action). The
petitioners have standing to bring this action.


       The governor's first argument requires us to perform statutory interpretation or
construction, which raises a question of law. State v. Jolly, 301 Kan. 313, 320, 342 P.3d
935 (2015). We routinely recite that our initial task is statutory interpretation, as long as
the language used by the legislature is plain and unambiguous. See State v. Urban, 291
Kan. 214, 216, 239 P.3d 837 (2010). If the language is less than clear or is ambiguous,
we move to statutory construction and use the canons of construction and legislative
history and other background considerations to divine the legislature's intent. See 291
Kan. at 216.


       The statute at issue in this case, K.S.A. 2015 Supp. 25-312a, reads in pertinent
part: "Any appointment made by the governor . . . shall be made within 90 days
following receipt of notice from the clerk of the supreme court." (Emphasis added.)
Petitioners argue that the word "shall" creates a mandatory duty on the part of the
governor to appoint within the prescribed 90-day period. The governor argues that the
word "shall" is merely directory in connection with the time limit. Our decision between
mandatory and directory will tell the tale because a merely directory provision is the
mark of a discretionary duty, and it is well established that mandamus cannot be invoked
to compel a public official to perform a discretionary duty. See Gaslight Villa, Inc. v. City
of Lansing, 213 Kan. 862, 872-73, 518 P.2d 410 (1974) ("This remedy may not be
invoked to control discretion, or to enforce a right that is in substantial dispute.") (citing
Curless v. Board of County Commissioners, 197 Kan. 580, 419 P.2d 876 [1966]); see also
Kansas Bar Ass'n, 270 Kan. at 491 ("'Mandamus may not be invoked to control
discretion.'"); Arney v. Director, Kansas State Penitentiary, 234 Kan. 257, 260, 671 P.2d
559 (1983) ("It is well established that mandamus will not lie for the performance of an

                                               6
act involving discretion on the part of a public official.") (citing Topeka Bldg. &
Construction Trades Council v. Leahy, 187 Kan. 112, 353 P.2d 641 [1960]); Martin,
Governor, v. Ingham, 38 Kan. 641, 651, 17 P. 162, 168 (1888) (governor subject to
mandamus only to compel ministerial acts, not discretionary acts; "ministerial act is one
which a public officer or agent is required to perform upon a given state of facts, in a
prescribed manner, in obedience to the mandate of legal authority, and without regard to
his own judgment or opinion concerning the propriety or impropriety of the act to be
performed").


       We have previously recognized that the legislature's use of the word "shall" can
have different meanings in different provisions. Because the word's meaning is not plain,
statutory construction rather than statutory interpretation is necessary.


       Our 2009 decision in State v. Raschke, 289 Kan. 911, 914-21, 219 P.3d 481
(2009), extensively reviewed the relevant historical caselaw on the issue and distilled a
four-factor test to be used to determine whether a "shall" in a statute should be
understood as directory or mandatory. Courts should consider "(1) legislative context and
history; (2) substantive effect on a party's rights versus merely form or procedural effect;
(3) the existence or nonexistence of consequences for noncompliance; and (4) the subject
matter of the statutory provisions, e.g., elections or notice on charges for driving under
the influence." 289 Kan. at 921.


       The first Raschke factor, legislative context and history, cuts convincingly in favor
of the governor in this case.


       The 90-day time limit was added to the statute by way of a 2014 set of
amendments, the only amendments since 1987. See L. 2014, ch. 82, sec. 25. Earlier
language had provided for a 60-day time limit, but it began to run at the time the vacancy
occurred rather than at the time the appellate clerk provided notice to the governor. The

                                              7
2014 amendments added 30 days and started the clock at the notice. They also provided
that the clerk had up to 120 days after a vacancy occurred to provide the notice in the first
place. See L. 2014, ch. 82, sec. 25. In other words, the legislature decided to substantially
lengthen the potential time a judicial position such as the one before us today could
remain open. Even if the statutory time limits are met, a vacancy can go unfilled for the 4
months until the clerk's notice plus the 3 months of the governor's process. This total of 7
months contrasts dramatically with the total of 2 months post-vacancy that the statute
contemplated before the 2014 amendments. In short, the legislative context indicates less,
rather than more, urgency.


       The governor's response makes another cogent point about legislative context and
history by comparing K.S.A. 2015 Supp. 25-312a to a different statute covering other
judicial appointments. To understand this comparison, the following basic pieces of
information are helpful.


       The judicial position at issue in this case is subject to partisan election. About half
of the district judges and district magistrate judges in Kansas' 31 judicial districts obtain
their seats by such a selection method. The other half arrive at the bench through a
nonpartisan district nominating commission process. In the nonpartisan districts, for
district magistrate judge positions, the commission vets the applicants and makes the
appointment, see K.S.A. 2015 Supp. 20-2914; for district judge positions, the
commission vets the applicants and submits the names of nominees to the governor, and
the governor then makes the appointment from among the nominees, see K.S.A. 2015
Supp. 20-2909; K.S.A. 2015 Supp. 20-2911. While K.S.A. 2015 Supp. 25-312a addresses
the filling of a vacancy on the bench that arises between elections for a district judge or
district magistrate judge seat subject to partisan election, K.S.A. 2015 Supp. 20-2911
speaks to filling district judge vacancies that arise anytime in those judicial districts that
use the nonpartisan nominating commission process.


                                               8
       The governor's comparison of the two statutes accurately observes that both
contain time limits for the governor's action on appointments. But only K.S.A. 2015
Supp. 20-2911 contains a provision designed to control in a situation like that giving rise
to this case—when the governor fails or refuses to appoint within the time limit. If such a
situation occurs on a district judge vacancy in a nonpartisan nominating commission
district, then the Chief Justice of the Supreme Court steps in and makes the appointment.
K.S.A. 2015 Supp. 20-2911(a).


       The legislature's creation of the backup plan for gubernatorial appointments in the
nonpartisan nominating commission districts demonstrates that it knows how to make
sure it has such a plan if it is considered necessary. The fact that it did not put a backup in
place for partisan election districts is persuasive evidence that it did not believe one to be
necessary for interim appointments such as the one before us today. Reasonable minds
may differ on the wisdom of this policy choice, but the choice is not this court's to make
or reform.


       On the second Raschke factor, it does not appear that K.S.A. 2015 Supp. 25-312a's
90-day time limit is meant to confer a specific legal right on any one party. This factor
tips the scale toward construction of the word "shall" as directory rather than mandatory.
See Raschke, 289 Kan. at 916 (quoting, inter alia, City of Hutchinson v. Ryan, 154 Kan.
751, Syl. ¶ 1, 121 P.2d 179 [1942] [where strict compliance with provision essential to
preservation of rights of parties affected, to validity of proceeding, provision mandatory;
where provision fixes mode of proceeding, time within which official act to be done,
provision directory; where provision merely intended to secure order, system, dispatch of
public business, provision directory]).


       On the third factor—whether the statute contemplates consequences for
noncompliance with the 90-day time limit—again, the factor cuts in favor of the

                                               9
governor's characterization of the word "shall" as directory only. Even petitioners' prayer
for relief implicitly acknowledges that at least the most serious consequence of tardiness,
i.e., invalidation of any eventual appointment, is not intended by the legislature. They
seek an immediate appointment, meaning they do not believe that the governor's
reluctance to appoint on time should deprive him of the power to appoint at all. Indeed,
the legislature appears to have provided for no adverse consequences for failure to meet
the 90-day time limit. See Raschke, 289 Kan. at 917-18 (citing and discussing, inter alia,
Hooper v. McNaughton, 113 Kan. 405, 407, 214 P. 613 [1923] [distinction between
directory, mandatory lies in consequence of nonobservance; act done in disobedience of
mandatory provision void; directory provision should be obeyed, but act done in
disobedience may still be valid]).


         The fourth Raschke factor focuses on subject matter of the statute at issue. It
recognized that statutes dealing with elections and DUI notices tended to be held to be
mandatory while statutes "governing order and timing of procedures are more likely to be
determined to be directory only." Raschke, 289 Kan. at 918-20 (collecting numerous
cases). The subject matter before us here deals explicitly with timing of the governor's
appointment, not with his substantive power. This factor also favors the governor's
argument that the "shall" in K.S.A. 2015 Supp. 25-312a is directory rather than
mandatory.


         Considering all of the four Raschke factors, we hold that the word "shall" in
K.S.A. 2015 Supp. 25-312a should be interpreted as directory. Although the governor
should appoint an interim district magistrate judge in a partisan election district within
the 90-day time limit set out in the statute, we construe the statute to permit him to do so
later.




                                               10
                                       CONCLUSION


       For all of the reasons discussed above, the petition for writ of mandamus is denied.


BILES, J., and STEGALL, J., not participating.
MICHAEL J. MALONE, Senior Judge, assigned.1
DAVID L. STUTZMAN, Senior Judge, assigned.2




1
 REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 115,982
vice Justice Biles under the authority vested in the Supreme Court by K.S.A. 20-2616.
2
 REPORTER'S NOTE: Senior Judge Stutzman was appointed to hear case No.
115,982 vice Justice Stegall under the authority vested in the Supreme Court by K.S.A.
20-2616.

                                             11
