Kansas Attorney General Opinion 1992-030

ROBERT T. STEPHAN
ATTORNEY GENERAL March 2, 1992
ATTORNEY GENERAL OPINION NO. 92- 30
The Honorable Bill Graves
Secretary of State
2nd Floor, State Capitol
Topeka, Kansas 66612-1594
Re: Courts--District Courts; Judicial Reapportionment
Act (1968)--Residence Requirements of Judges of the
District Court
Synopsis: In order to be eligible for nomination, election,
or selection to the first of the three district
judge positions of the 20th judicial district, an
individual must be a resident of Stafford,
Russell, Ellsworth, or Rice county at the time of
nomination, election, or selection. Nomination,
election, or selection to the two remaining
district court positions may be conferred only on
individuals who are residents of Barton county at
the time of nomination, election, or selection.
Cited herein: K.S.A. 4-202; 4-221; 4-221 (Ensley
1985); 20 - 301a;. 20-331; 20 - 334; 20 - 336; 20 - 338
(Ensley 1985); 20-364; Kan. Const., art. 3, §
6; L. 1968, ch. 385, § 36; L. 1976, ch. 146, §
10; L. 1980, ch. 4, § 6; L. 1981, ch. 132, § 1,
L. 1986, ch. 115, §§ 18, 39, 106.
Dear Secretary Graves:
As secretary of state, you request our opinion regarding the
residence requirements of judges of the district court for the
20th judicial district. Specifically, you ask: (1) whether

persons filing as candidates for two of the three district
judge positions in the 20th judicial district must be
residents of Barton county; (2) whether the district
magistrate judge in Rice county would be required to resign
such position and establish residence in Barton county
before seeking the position of district judge; and (3) whether
a resident of the 20th judicial district who resides outside
Barton county may be considered for filling a vacancy in the
position of district judge.
Pursuant to section 6 of article 3 of the Kansas constitution,
the state has been divided into judicial districts. See
K.S.A. 4-202 et seq. The district courts are served by
two classes of judges of the district court: district judges
and district magistrate judges. K.S.A. 20-301a. District
judges are elected by the electors of the respective judicial
districts unless the electors of a judicial district have
adopted a method of nonpartisan selection. Kan. Const.,
art. 3, § 6. Likewise, district magistrate judges are elected
by the electors of the county where the judges' positions are
located unless a proposition for nonpartisan selection of
district magistrate judges has been approved in the judicial
district. K.S.A. 20-336.
The 20th judicial district consists of the counties of
Stafford, Barton, Russell, Ellsworth and Rice, and is
served by three district judges. K.S.A. 4-221. The 20th
judicial district is also served by four district magistrate
judges, with position one in Ellsworth county, position two
in Rice county, position three in Russell county and position
four in Stafford county. K.S.A. 20-338. The district
judges and district magistrate judges of the 20th judicial
district are elected rather than selected on a nonpartisan
basis.
The interpretation of a statute is a question of law and it is
the function of the court to interpret the statute to give it
the intended effect. Unified School District No. 279 v.
Sec'y of the Kansas Department of Human Resources, 247
Kan. 519, 524 (1990). The fundamental rule of statutory
construction is that the purpose and intent of the legislature
govern when that intent can be ascertained from the statute.
Id. at 527. In determining legislative intent, courts are
not limited to a mere consideration of the language employed
but may properly look into the historical background of the
enactment, the circumstances attending and subsequent to its
passage, the purposes to be accomplished and the effect the
statute may have under the various constructions suggested.

Joe Self Chevrolet, Inc. v. Board of County Comm'rs of
Sedgwick County, 247 Kan. 625, 633 (1990). A statute
should not be given a construction that leads to uncertainty,
injustice, or confusion if possible to construe it otherwise.
State, ex rel. Stephan v. Kansas Racing Comm., 246 Kan.
708, 719 (1990). Furthermore, a construction that makes part
of the legislative act surplusage should be avoided if
reasonably possible. Id. It is presumed that the
legislature, in amending a statute, acted with full knowledge
and information as to the subject matter of the statute, as to
prior and existing legislation on the subject of the statute,
and as to judicial decisions with respect to prior and
existing law. State v. Coley, 236 Kan. 672, 675 (1985).
Residence requirements of judges of the district court are set
forth in K.S.A. 20-331. (The term judge of the district court
includes a district judge and a district magistrate judge.
K.S.A. 20-301a.)
"(a) Except as provided in subsection
(b), any person who has the qualifications
prescribed for a district judge by K.S.A.
20-334 shall be eligible for nomination,
election or appointment to the office of
judge of the district court in any
judicial district. If such person is not
a resident of the judicial district at the
time of nomination, election or
appointment, such person shall establish
residency in the judicial district before
taking the oath of office and shall
maintain residency while holding office.
"(b) No person shall be eligible for
nomination, election or appointment to the
office of judge of the district court in
any county of any judicial district for
which there has been established residence
requirements for the holding of such
office if such person is not a resident of
the county at the time of nomination,
election or appointment." K.S.A. 20 - 331.
As originally enacted, K.S.A. 20-331 established similar
residence requirements for judges of district courts in all
judicial districts. L. 1968, ch. 385, § 36 stated that no
person was eligible for nomination, election, or appointment
to the office of judge of the district court of any judicial

district unless the person was a resident of the judicial
district at the time of nomination, election, or appointment,
and if legislation prescribed that the judge be a resident of
a particular division (county) within the judicial district,
the person was required to be a resident of the division
(county) at the time of nomination, election, or appointment.
In L. 1980, ch. 44, § 6, the residence requirements were
relaxed for those judges of district courts in judicial
districts in which no county residence requirements were set
forth. Such judges were required to be residents of the
judicial district at the time of taking the oath of office and
while holding office. However, those judges serving a
judicial district for which residence in a specific county was
required continued to be subject to the requirement that they
be a resident of the county at the time of nomination,
election, or appointment. Although it appears that
maintaining the county residence requirement may have been
unintentional, such residence requirement was ratified when it
was clearly set forth in L. 1981, ch. 132, § 1, in which the
statute was amended to its present form. Therefore, a judge
serving in a judicial district for which a county residence
requirement is set forth must be a resident of the county at
the time of nomination, election, or appointment. K.S.A.
20-331(b). In a judicial district which is not subject to a
county residence requirement, the judge must be a resident of
the judicial district at the time of taking the oath of office
and while holding office. K.S.A. 20-331(a). See K.S.A.
20-334.
K.S.A. 4-221 states:
"The counties of Stafford, Barton,
Russell, Ellsworth and Rice shall
constitute the 20th judicial district.
There shall be three district judges in
such district. The judge holding one of
the district judge positions shall be a
resident of Stafford, Russell,
Ellsworth or Rice county and the judge
holding another such position shall be a
resident of Barton county. The
position of the third district judge
shall be in Barton county." (Emphasis
added.)
A county residence requirement is clearly established for two
of the three district judge positions of the 20th judicial
district. Therefore, pursuant to K.S.A. 20-331, a person is

not eligible for nomination, election, or appointment to the
first of the three district judge positions of the 20th
judicial district unless such person is a resident of
Stafford, Russell, Ellsworth, or Rice county at the time
of nomination, election, or appointment to the position of
district judge. Likewise, a person must be a resident of
Barton county at the time of nomination, election, or
appointment to the second of the three positions of district
judge of the 20th judicial district.
In order to determine whether the third district judge must,
prior to nomination, election, or selection to the position of
district judge of the 20th judicial district, be a resident
of Barton county, a review of the history of the district
court is necessary. As originally enacted, K.S.A. 20-301a
recognized three classes of judges of the district court --
district judges, associate district judges and district
magistrate judges. L. 1976, ch. 146, § 10. In 1983, the
legislation enacted K.S.A. 20-364 which provided for the
abolishment on January 12, 1987 of all associate district
judge positions. "On or after January 12, 1987, there is
hereby created, in each judicial district, new district judge
positions equal in number to the associate district judge
positions abolished in the district. . . ." K.S.A.
20-364(b). At the time of elimination of the positions of
associate district judge, the 20th judicial district was
served by: two district judges, one of whom was a resident of
Barton county and the other a resident of a county other
than Barton, K.S.A. 4-221 (Ensley 1985); one associate
district judge in Barton county, K.S.A. 1985 Supp. 20-338
(Ensley 1985); and four district magistrate judges, K.S.A.
1985 Supp. 20-338 (Ensley, 1985). After January 12, 1987,
the one associate district judge position in Barton county
was eliminated and a new district judge position was created.
L. 1986, ch. 115, §§ 18, 39, 106. K.S.A. 20-364 provides in
part:
"(e) If it is provided by law that an
associate district judge position
eliminated pursuant to this section shall
be in a particular county and if a new
division of the district court is created
to replace that associate district judge
position, any district judge of the new
division of the district court shall be
required to be a resident of the county in
which the former associate district judge
position was located."

The last sentence of K.S.A. 4-221 stating that "[t]he position
of the third district judge shall be in Barton county," is
an acknowledgement of the county residence requirement
prescribed by K.S.A. 20-364(e). The provision was part of a
cleanup bill adopted in 1986. Minutes, Senate Committee on
Judiciary, March 24, 1986; Minutes, House Committee on
Judiciary, March 5, 1986. Therefore, all three district
judges of the 20th judicial district are subject to a county
residence requirement, and must be residents of the respective
counties at the time of nomination, election, or selection.
In order to be eligible to receive nomination, election, or
selection to the first of the three district judge positions
of the 20th judicial district, an individual must be a
resident of Stafford, Russell, Ellsworth, or Rice county
at the time of nomination, election, or selection.
Nomination, election, or selection to the two remaining
district judge positions may be conferred only on individuals
who are residents of Barton county at the time of receiving
the nomination, election, or selection.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Richard D. Smith
Assistant Attorney General
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