Kansas One-Call Sys., Inc. v. State

274 P.3d 625

KANSAS ONE–CALL SYSTEM, INC., Appellant,

v.STATE of Kansas, Appellee.

No. 104,498.

Supreme Court of Kansas.

April 12, 2012.

Syllabus by the Court

1. When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. To preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to conclusions drawn from the evidence.

2. Determining a statute's constitutionality is a question of law subject to unlimited review. But under the separation of powers doctrine, courts are to presume that a statute is constitutional and resolve all doubts in favor of the statute's validity. Courts must interpret a statute in a way that makes it constitutional if there is any reasonable construction that would maintain the legislature's apparent intent.

3. The purpose of the constitutional provision requiring every bill to contain but one subject is to guard against “logrolling,” combining subjects representing diverse interests and presenting them as separate provisions of one bill. The bill then is able to pass by virtue of the combined votes of the separate factions.

4. A bill is valid under Article 2, § 16 of the Kansas Constitution so long as the provisions of the bill are all germane to the subject expressed in the title and will be invalidated only where an act embraces two or more dissimilar and discordant subjects that cannot reasonably be considered as having any legitimate connection with or relationship to each other. Moreover, a bill's subject can be as comprehensive as the legislature chooses, as long as it constitutes a single subject and not several different ones.

5. The constitutional provision prohibiting a bill from containing more than one subject will be liberally construed to effectuate the acts of the legislature.

6. To violate the single subject rule, a bill must have two dissimilar subjects that have no legitimate connection with each other. Invalidity must be manifest.

7. Administrative power is the power to administer or enforce laws, while legislative power is the power to make laws rather than the power to enforce them. A legislature's delegation of legislative power to make a law is improper, unless the Kansas Constitution permits delegation of legislative power to a different branch of government. If the constitution does not permit this type of delegation, the separation of powers doctrine is violated because legislative power is vested in the legislature only. But the legislature can delegate the power to fill in the details of an enacted statute. And standards to govern the exercise of such authority may be implied from the statutory purpose.

8. Under the general rules of statutory interpretation, various provisions of an act in pari materia must be construed together in an effort to reconcile the provisions so as to make them consistent, harmonious, and sensible. Additionally, legislative intent is to be determined from a general consideration of the entire act. An appellate court's duty, as far as practicable, is to harmonize different statutory provisions to make them sensible.

9. The Fourteenth Amendment to the United States Constitution guarantees equal protection under the law to any person, and the Kansas Constitution Bill of Rights § 1 provides practically lockstep protection.

10. The United States Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. The Equal Protection Clause allows states to write into law differences that exist in those areas in which public power is exerted.

11. The Takings Clause of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that private property shall not be taken for public use, without just compensation. In other words, the Fifth Amendment's guarantee is designed to bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

Mark G. Ayesh, of Ayesh Law Offices, of Wichita, argued the cause, and Ray E. Simmons, of the same firm, was with him on the briefs for appellant.

Christopher M. Grunewald, assistant attorney general, argued the cause and was on the brief for appellee.

Vaden F. Bales, of Riggs, Abney, Neal, Turpen, Orbison & Lewis, P.C., of Tulsa, Oklahoma, was on the brief for amicus curiae One Call Concepts, Inc.The opinion of the court was delivered by GREEN, J.:

Kansas One–Call System, Inc. (One–Call) appeals from the summary judgment of the trial court in favor of the State of Kansas in One–Call's suit challenging the constitutionality of the 2008 amendments in House Bill 2637 to the Kansas Underground Utility Damage Prevention Act (KUUDPA), K.S.A. 66–1801 et seq. On appeal, One–Call raises four claims contending that the 2008 amendments to KUUDPA violate: (1) the one-subject rule contained in the Kansas Constitution; (2) the separation of powers doctrine; (3) the Fourteenth Amendment to the United States Constitution right to equal protection; and (4) the Fifth and Fourteenth Amendments to the United States Constitution, which prohibit the taking of private property for public use without just compensation. Because the challenged amendments are valid, we affirm.

Facts

One–Call began as a voluntary association of utility companies in 1983. Now, it is a nonprofit corporation that comprises the majority of utility companies in the State of Kansas. Since its creation, One–Call has provided information to its members about future planned excavation activities, and it gives its member utility companies an opportunity to mark the location of their underground facilities before excavation work starts. One–Call makes money by charging a referral fee for alerting its members of a planned dig. In some years, One–Call nets revenue; in others, it incurs a loss. In 1993, the Kansas Legislature adopted One–Call's business model and enacted the KUUDPA. K.S.A. 66–1801 et seq. ; L. 1993, ch. 217; H.B. 2041 (1993).

The KUUDPA created a mandatory program designed to protect the State's underground utility infrastructure from excavation damage and to protect the public from harm. K.S.A. 66–1801 et seq. The KUUDPA requires diggers to inform a centralized “notification center” of their intent to dig before they start excavating. See K.S.A. 66–1803 (“An excavator shall not engage in excavation near the location of any underground facility without first having ascertained, in the manner prescribed in this act, a location of all underground facilities in the proposed area of the excavation.”). The notification center then passes along the dig information to the applicable utility operators. See K.S.A. 66–1805. Upon receiving notification of the proposed dig, utility operators are required to mark the locations of underground utilities to avoid accidental utility strikes. K.S.A. 66–1806(a). The parties agree that “the notification center is the linchpin to the program, ensuring that excavator's project information reaches utility operators, who then identify the location of any potentially affected underground utilities.”

In 1993, One–Call began managing and operating the notification center for the State. Utility membership became mandatory. The relationship between One–Call and the notification center is in dispute. One–Call maintains that it is the notification center while the attorney general argues on behalf of the State that it is simply the entity that runs the notification center.

In 2008, the Kansas Legislature amended the KUUDPA. These amendments are the cause for One–Call's lawsuit because both One–Call and its utility members will be affected financially by the amendments. The 2008 amendments include the following changes to the KUUDPA:

• mandated that potable water and sanitary sewage operators become members of the notification system. K.S.A. 2011 Supp. 66–1802(e); K.S.A. 2011 Supp. 66–1805(a).

• trifurcated the utility members into different tiers creatively identified Tier 1, Tier 2, and Tier 3. K.S.A. 2011 Supp. 66–1802(p), (q), (r).

• regulated the membership fees that can be collected from Tier 2 and Tier 3 members. K.S.A. 2011 Supp. 66–1802(r); K.S.A. 2011 Supp. 66–1805(j);

• imposed several public accountability requirements on the State's notification center, including deeming the notification center to be a public agency making its business records subject to the Kansas Open Records Act and the Kansas Open Meetings Act. K.S.A. 2011 Supp. 66–1805( l ), (n).

Tier 1 members are the non-water utilities. K.S.A. 2011 Supp. 66–1802(p). There are no restrictions on how the notification center may charge a Tier 1 member for each referral. Tier 2 facilities are the water utilities. K.S.A. 2011 Supp. 66–1802(p). The notification center may only charge Tier 2 utilities 50% of what Tier 1 facilities are charged—K.S.A. 2011 Supp. 66–1805(i)—but some larger water utilities may become Tier 3 facilities. To be a Tier 3 member, a larger (more than 20,000 customers) water utility must create its own in-house notification center and employ at least two people to flag the location of its underground utilities. K.S.A. 2011 Supp. 66–1802(r). The notification center may not charge a Tier 3 facility a referral fee; instead the Tier 3 member pays a...