TOPEKA – (December 1, 2020) – Kansas Attorney General Derek Schmidt today issued the following statement regarding the investigation of State Representative Michael Capps referred from the Office of the Sedgwick County District Attorney:
“On November 20, 2020, the Office of the Attorney General was asked by the Office of the Sedgwick County District Attorney to review results of its investigation into the behavior of State Representative Michael Capps and determine whether the facts and the law support the filing of a civil action seeking a court order to oust Mr. Capps from the office of state representative. The formal referral of the matter was received by the Office of the Attorney General on November 25, 2020.
“The Kansas Constitution provides that ‘[e]ach house [of the Legislature] shall provide for the expulsion or censure of its own members’ and ‘[e]ach house shall be the judge of … qualifications of its own members.’ See Kan.Const.Art.2, Sec. 8. As the Kansas Supreme Court explained long ago, this means that Kansas courts ‘are powerless to enforce any judgment of ouster against a member of the legislature’ because ‘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 or officer. This power continues during the entire term of office.’ State ex rel. Attorney Gen. v. Tomlinson, 20 Kan. 692, 702-03 (1878). This is the prevailing legal rule in other states as well.
“Therefore, the attorney general cannot file a lawsuit seeking ouster of Mr. Capps from the House of Representatives because Kansas courts lack jurisdiction to order him removed from office. The only ways to involuntarily remove a state representative from office are electoral defeat coupled with expiration of the term of office, recall, or expulsion by vote of the House of Representatives itself. Mr. Capps was defeated in the primary election on August 4, and is now less than six weeks from the end of his term of office. Under Kansas law, a recall application may not be filed in the last 200 days of a legislator’s term of office. See K.S.A. 25-4305. We will refer the file in this case to the leaders of the House of Representatives so they may consider whether expulsion proceedings are appropriate, although we are aware that the Legislature is not currently scheduled to be in session before Mr. Capps’ term of office expires on January 11, 2021.”