Newspaper article The Topeka Capital-Journal

Top Court May Set Precedent on HPT ; Precedent: 'There's Not a Clear Line' on Who Has Power to Issue Local Ordinances

Newspaper article The Topeka Capital-Journal

Top Court May Set Precedent on HPT ; Precedent: 'There's Not a Clear Line' on Who Has Power to Issue Local Ordinances

Article excerpt

The Kansas Supreme Court has yet to decide if it will hear a case that would determine if a petition drive to put Heartland Park Topeka to a public vote was valid, but both parties involved believe the case would set statewide precedent.

The city of Topeka on May 5 voted against a proposal to purchase the raceway and expand a state bond district, but lawyers representing the city and Jayhawk Racing LLC -- and R.E. "Tuck" Duncan Jr., the attorney representing petitioner Chris Imming -- haven't pulled away from their efforts to have the high court review the case.

The case hinges on two parts:

- Whether city manager Jim Colson had the permission of the city council to file a lawsuit against Imming's initiative petition.

- If the ordinance allowing the purchase of the park with state bonds was legislative or administrative.

Simply put, a legislative ordinance creates a new law, and an administrative ordinance implements an existing law.

In his Nov. 12 decision, Shawnee County District Court Judge Larry Hendricks found the petition complied with the law, but the city ordinance to purchase Heartland Park and expand the bond district was administrative. Initiative petitions like Imming's can't be filed against administrative ordinances. He also ruled Colson had the power to enter litigation against the petition.

The Kansas Court of Appeals ruled in March the city manager lacked authority to file the lawsuit, but agreed with the lower court's opinion that Imming's petition was the wrong format to challenge the issuance of Sales Tax Revenue (STAR) bonds.

Katie Logan, with Overland Park-based Lathrop & Gage LLP, said the city contends the council ratified Colson's decision to file the lawsuit during the Oct. 21 council meeting, when council members voted not to approve Councilman Chad Manspeaker's motion that would have ordered the city attorney not to pursue litigation.

Duncan agrees with the appeals court that the city council must ratify litigation.

"The city manager works for them," he said.

It is too early to know if the court will review the case, but the court tends to pick cases with a wide impact, court spokesperson Lisa Taylor said. …

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