Kansas Attorney General Opinion 1992-052

ROBERT T. STEPHAN
ATTORNEY GENERAL
April 17, 1992
ATTORNEY GENERAL OPINION NO. 92- 52
The Honorable Joan Finney
Governor of the State of Kansas
State Capitol, 2nd Floor
Topeka, Kansas 66612-1590
Re: Constitution of the State of Kansas--
Legislature--Subject and Title of Bills; 1992 House
Bill No. 2646 Regarding Health Care; Abortion
Synopsis: 1992 House Bill No. 2646, dealing with health care
issues and regulation of abortion, does not violate
the constitutional prohibition against bills
containing more than one subject. Cited herein:
K.S.A. 21-3407; 21-3721; Kan. Const., art. 2, §
16; 1992 House Bills No. 2646, 2778.
*
Dear Governor Finney:
You request our opinion regarding 1992 House Bill No. 2646 and
its conformance with article 2, section 16 of the Kansas
constitution. You express your concerns as follows:
"House Bill 2646 addresses two policy areas, i.e., regulation
of abortion and criminal trespass. While the provision
regarding criminal trespass (Section 6) includes definitions
of 'health care facility' and 'health care provider', I am
concerned that this is an inadequate nexus between the two
otherwise unrelated policy areas to achieve conformance with
Article 2, Section 16 of the Constitution of the State of
Kansas. Therefore, I seek your opinion as to whether House

Bill 2646 comports with Article 2, Section 16 of our state
Constitution.
"In this regard, I am aware that 'appropriation bills and
bills for revision or codification of statutes' are exempted
from the one-subject requirement of our Constitution and that
House Bill 2646 was introduced by the House Committee on
Appropriations. Hence, I also inquire whether these
circumstances are sufficient to achieve conformance with
Article 2, Section 16 of the Constitution of the State of
Kansas."
Article 2, section 16 provides in pertinent part:
"No bill shall contain more than one
subject, except appropriation bills and
bills for revision or codification of
statutes. The subject of each bill shall
be expressed in its title. . . . The
provisions of this section shall be
liberally construed to effectuate the acts
of the legislature."
This provision has been construed and applied many times by
the Kansas appellate courts. The basic rules were enunciated
by the Supreme Court in State v. Barrett, 27 Kan. 218,
syl. TT 3-10 (1882) and reiterated in State ex rel. Stephan
v. Thiessen, 228 Kan. 136, 143 (1980):
"In order to correctly interpret that
provision of § 16, article 2 of the
constitution, which provides that 'No bill
shall contain more than one subject, which
shall be clearly expressed in its title,'
its object must be taken into
consideration; and the provision must not
be construed or enforced in any narrow or
technical spirit, but must be construed
liberally on the one side, so as to guard
against the abuse intended to be prevented
by it, and liberally on the other side, so
as not to embarrass or obstruct needed
legislation.
"Under this provision of the constitution,
the title of an act may be as broad and
comprehensive as the legislature may
choose to make it; or it may be as narrow

and restricted as the legislature may
choose to make it. It may be so broad
and comprehensive as to include
innumerable minor subjects, provided all
these minor subjects are capable of being
so combined and united as to form only one
grand and comprehensive subject; or it
may be so narrow and restricted as to
include only the smallest and minutest
subject.
"And while the title to an act may include
more than one subject, provided all can be
so united and combined as to form only one
single, entire, but more extended subject;
yet, neither the title to the act nor the
act itself can contain more than one
subject, unless all the subjects which it
contains can be so united and combined as
to form only one single subject.
"Where a section of an act is assailed as
being in contravention of said provision
of § 16, article 2 of the constitution,
it is sufficient if it is germane to the
single subject expressed in the title and
included therein, provided the act itself
does not contain more than this single
subject.
"Where the title to an act is not broad
enough to include everything contained in
the act, that which is not included within
the title must be held to be invalid, for
such is evidently the manifest intention
of the constitution; and the courts have
no power to enlarge or extend or amplify
the title to the act, any more than they
have to enlarge or diminish or modify or
change the act itself.
"Where an act contains two separate and
independent subjects, having no connection
with each other, and the title to the act
is broad enough to cover both, held,
that probably, as a general rule, the act

is unconstitutional and void." (Emphasis
added).
In Garten Enterprises, Inc. v. City of Kansas City, 219
Kan. 620, 622 (1976), the court stated that the purposes of
the one subject in a bill requirement of article 2, section 16
were:
"[T]he prevention of a matter of
legislative merit from being tied to an
unworthy matter, the prevention of
hodge-podge or log-rolling legislation,
the prevention of surreptitious
legislation, and the lessening of improper
influences which may result from
intermixing objects of legislation in the
same act which have no relation to each
other."
The court's standard of review was restated most recently in
Harding v. K.C. Wall Products, Inc., No. 66,513, slip
op. at 30, 31 (Kan. April 10, 1992) [quoting State v.
Reyes, 233 Kan. 972, Syl. ¶ 1 (1983)]:
"'Art. 2, § 16, of the Kansas Constitution
should not be construed narrowly or
technically to invalidate proper and
needful legislation, and where the subject
of the legislation is germane to other
provisions, the act is not objectionable
as containing more than one subject or as
containing matter not expressed in the
title. This provision is violated only
where an act embraces two or more
dissimilar and discordant subjects that
cannot reasonably be considered as having
any legitimate connection with or
relationship to each other.'"
In State v. Thiessen, supra, the court held the
legislation before it violated article 2, section 16:
"Sections 1 through 4 of HB 3129 are
exclusively concerned with certain aspects
of criminal procedure. The balance of the
bill is concerned with the Kansas law
enforcement training center. These are
two separate subjects which cannot

lawfully be united under the broad title
'crimes.' Significantly, no crimes are
defined in the act and no provision in the
act amends or alters the Kansas Criminal
Code. . . ."
In that case, the two areas dealt with in the bill were
originally the subjects of separate bills. One of the bills
had been voted down in the Senate but subsequently merged with
the other bill to form the legislation in question. This was
clearly an attempt to log-roll the "meritless" legislation.
By contrast, 1992 House Bill No. 2646 is titled:
"An Act concerning health care; relating
to abortion; prohibiting certain acts with
regard to abortion and prescribing
penalties therefor; requiring counseling
before performance of abortions on certain
minors; requiring notification of certain
persons before performance of abortions on
certain minors; prohibiting certain acts
with regard to certain health care
facilities and providing penalties
therefore; imposing certain prohibitions
on political subdivisions; requiring
informed consent to certain abortions;
amending K.S.A. 21-3721 arid repealing the
existing section; also repealing K.S.A.
21-3407."
Thus, the title expresses the broad, comprehensive subject of
health care, as well as more narrow and restricted subjects
such as prohibiting certain acts with regard to abortion,
prohibiting certain acts with regard to health care facilities
and amending K.S.A. 21-3721. We believe the subject of the
bill is adequately expressed in the title in contrast to the
title under review in Thiessen. Further, there is no
evidence of log-rolling in the enactment of 1992 House Bill
No. 2646. No one of its provisions had been specifically
rejected and then later placed in a separate, dissimilar bill
which had previously been viewed favorably. See 1992 House
Bill No. 2778.
House Bill No. 2646 is more analogous to the bill reviewed in
State v. Relies, supra:

"In enacting Senate Bill No. 699 the
Legislature sought to provide a
comprehensive scheme for the stricter
enforcement and prosecution of alcohol or
drug-related traffic offenses and the
enhancement of penalties therefor. To
accomplish this end it was necessary for
the legislature to amend existing
statutory provisions relating generally to
subjects other than alcohol and
drug-related traffic offenses, including
suspension and revocation of drivers'
licenses, admissibility of evidence of a
driver's blood alcohol consent or refusal
to take a blood alcohol test, the use of
diversion agreements by county or district
attorneys in lieu of prosecution for
various criminal offenses, and the record
on appeal in municipal and district court
prosecutions resumed upon failure to
comply with a diversion agreement.
"These provisions are all germane to the
broad encompassing subject of alcohol and
drug-related traffic offenses. None of
the revisions to existing statutes or
newly enacted provisions contained in the
act can be said to be so diverse or
dissimilar as to have no legitimate
connection or relation to the subject of
alcohol or drug-related traffic
offenses." Reyes, 233 Kan. at 979, 980.
The sections in 1992 House Bill No. 2646 may be summarized as
these: Section 1 defines terms used throughout the bill;
section 2 legalizes contraception devices and prohibits local
units of government from regulating abortion; section 3
criminalizes abortions of viable fetuses except in limited
circumstances; section 4 requires counseling prior to and
after the performance of an abortion on a minor except in
limited circumstances; section 5 requires parental notification
prior to the performance of an abortion on a minor except in
limited circumstances; section 6 amends the criminal trespass
statute to prohibit interference with access to or from a
health care facility, including those which provide abortion
services; section 7 requires informed consent prior to

performance of an abortion except in limited circumstances;
section 8 is a severability clause; section 9 repeals K.S.A.
21-3407 and 21-3721; and section 10 sets forth the effective
date of the act. In enacting this bill, the legislature
sought to deal with health care, particularly in the area of
abortion. The provision with which you are concerned, section
6, was believed necessary to ensure the accessibility of
health care facilities for abortion-related services as well
as other health care services. Evidence of this appears in
the supplemental note attached to the bill which states in the
section discussing the bill's background:
"The City of Wichita's arrest policy last
summer (over 2,700 arrests during the
abortion protests) was to charge persons
with loitering who were on sidewalks,
rights-of-way, and easements and blocked
access to clinics. Those who were on
private property, e.g., parking lots and
inside buildings were charged with
criminal trespass. H.B. 2646 expands the
crime of criminal trespass to include
blocking access to medical care facilities
on both public and private property."
The amendment to K.S.A. 21-3721 is germane to the broad
encompassing subject of health care and regulation of
abortion. It cannot be said "to be so diverse or dissimilar
as to have no legitimate connection or relation to the subject
of" health care. It is therefore our opinion that 1992 House
Bill No. 2646 does not violate article 2, section 16 of the
Kansas constitution. Since we have opined that the bill does
not violate the general constitutional prohibition of two
subjects, we need not consider the exceptions to the general
rule for appropriation bills and bills for revision or
codification of statutes.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Julene L. Miller
Deputy Attorney General
RTS:JLM:jm