Kansas Advisory Opinions June 20, 1991: AGO 91-67 (June 20, 1991)

AGO 1991-067.

Synopsis:

As used in K.S.A. 12-3013, the word "electors" means persons who were qualified electors at the time they signed the petition requesting the referendum and does not mean that they had to be qualified electors at the time of the preceding regular city election. Additionally, pursuant to K.S.A. 1990 Supp. 25-3601, the sufficiency of each signature and the number thereof on a petition filed pursuant to K.S.A. 12-3013 shall be determined by the county election officer. Cited herein: K.S.A. 12-3013; K.S.A. 1990 Supp. 25-3601.

Dear Mr. Lang:

You request our interpretation of K.S.A. 12-3013. Specifically, you ask whether a person signing an initiative petition must merely be a elector of the city, or whether such person must be a elector who voted at the last regular city election. Also, you ask whether the county election officer or the city clerk determines the validity of the signatures on an initiative petition.

Subsection (a) of K.S.A. 12-3013 provides as follows:

"Except as provided in subsection (e), a proposed ordinance may be submitted to the governing body of any city accompanied by a petition as provided by this section. Such petition shall be signed by electors equal in number to at least 25 per cent in cities of the first class, and 40 per cent in cities of the second and third class, of the electors who voted at the last preceding regular city election as shown by the poll books and shall contain a request that the governing body pass the ordinance or submit the same to a vote of the electors. Such ordinance and petition shall be filed with the city clerk."

In a letter opinion dated January 25, 1963, appearing at page 35 of Volume IV of Opinions of the Attorney General , former Attorney General Robert C. Londerholm interpreted the above language as follows:

"It is our opinion that the word 'electors' means persons who were qualified electors at the time they signed the petition requesting the referendum and does not mean that they had to be qualified electors at the time of the preceding regular city election. The words 'forty percent' relate to the words 'who voted' and do not relate to the word 'electors' except for the purpose of fixing the number of the petitioners."

In regard to your second question, regarding the official who determines the sufficiency of signatures on an initiative petition, K.S.A. 1990 Supp. 25-3601 provides as follows:

"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 specifically provided in the statute providing for the petition. The sufficiency of each signature and the number thereof on any such petition shall be determined in accordance with the provisions of K.S.A. 25-3601 to 25-3607, inclusive, and amendments thereto by the county election officer or such other official as designated in the applicable statute. When any statute makes specific provisions concerning matters that K.S.A. 25-3601 et seq . and amendments thereto also has requirements which are different therefrom, the provisions of the specific statute shall control."

Subsection (a) of K.S.A. 12-3013, quoted above, provides that the initiative petition authorized thereunder shall be filed with the city clerk. That section does not, however, designate the city clerk as being responsible for determining its sufficiency. The city clerk is designated only as the filing officer, as it were, who has no other responsibilities in connection with the petition. In our judgment, it is the county election officer who is responsible for determining the sufficiency of an initiative petition filed under K.S.A. 12-3013.

Very truly yours,

Robert T. Stephan

Attorney General of Kansas

Terrence R. Hearshman

Assistant Attorney General

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