Case Details


Attorney General Control Of Litigation, Separation Of Powers

Filing State



Kansas Supreme Court




State ex rel. Morrison v. Sebelius, 285 Kan. 875, 179 P.3d 366 (Kan. 2008).


Attorney General cannot be directed by legislature to file suit that he thinks is frivolous.

Case Description

The Kansas legislature enacted a statute addressing protests at military funerals. The statute provided that the provisions of the Act regulating the time and place of protests at funerals would not become operative unless the Kansas Supreme Court or a federal court determined the funeral protest provisions were constitutional. The Act also directed the Attorney General to file a lawsuit challenging the constitutionality of those provisions. Rather than filing that suit, the Attorney General filed a quo warranto suit against the Governor, alleging that the legislature intruded into executive and judicial powers by ordering the attorney general to file a lawsuit he believes would seek an unconstitutional remedy and that the judicial trigger lawsuit would be an illegal advisory opinion. Because the Attorney General did not believe the provisions of the statute regarding the time and place of protests at funerals were unconstitutional, he argued that the legislature could not direct the Attorney General to take an action that the Attorney General believes is without merit. The Kansas Supreme Court agreed, holding that neither the legislature nor the governor has the “constitutional authority to intrude into the attorney general’s duties as an officer of the court.” The legislature cannot override an attorney’s ethical duties to not “bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, . . . ” (citing Kansas Rules of Professional Conduct). The Kansas Supreme Court went on to hold that the suit that the Attorney General was directed to file would result in an unconstitutional advisory opinion by the Court.