AG cannot file lawsuit against Michael Capps due to lack of jurisdiction in Kansas courts

Published: Dec. 1, 2020 at 2:47 PM CST
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TOPEKA, Kan. (WIBW) - Attorney General Derek Schmidt will not be filing a lawsuit against State Representative Michael Capps.

Attorney General Derek Schmidt says on Nov. 20, his office was asked by the Sedgwick County District Attorney to review the results of an investigation into the behavior of State Representative Michael Capps. He said he was asked to decide if the facts and the law support the filing of a civil action seeking a court order to oust Capps from the office of state representative. He said the formal referral was received by his office on Nov. 25.

According to Schmidt, the Kansas Constitution provides that “each house of the Legislature shall provide for the expulsion or censure of its own members’ and each house shall be the judge of qualifications of its own members,” in Kan. Const. Art. 2, Sec. 8. He said as the Kansas Supreme Court once explained, this means that Kansas courts are ‘powerless to enforce any judgment of ouster against a member of the legislature’ due to the fact that ‘the power to judge of the qualifications of members of the legislature is exclusively vested in each house and cannot be vested in any other tribunal officer,” in State ex rel. Attorney General v. Tomlinson. Schmidt said this power continues throughout the entire term of office. Schmidt said this is also the prevailing legal rule in other states.

Schmidt said, for this reason, he cannot file a lawsuit seeking ouster of Capps from the House of Representatives because Kansas courts do not have jurisdiction to order him to be removed from office. He said the only ways to remove a state representative from office are electoral defeat with the expiration of the term of office, recall or expulsion by a vote of the House of Representatives.

According to Schmidt, Capps was defeated in the primary election on Aug. 4 and is now less than six weeks from the end of his term of office. He said under Kansas law, a recall application cannot be filed in the last 200 days of a legislator’s term of office. He said his office will refer the file in the case to the leaders of the House of Representatives in order for them to decide whether expulsion proceedings are appropriate. However, he said the Legislature is not scheduled to be in session before the expiration of Capps’ term on Jan. 11, 2021.

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