AG opinion

When a public official, such as a county commissioner, fails to implement a state law, the remedies are typically political or administrative, not a personal lawsuit from a citizen. The official's status as a lawyer and "officer of the court" is unlikely to change this, as their obligations in that capacity primarily relate to their practice of law, not to their political duties. 

Why suing is difficult

• Official duties vs. personal capacity: When serving as a commissioner, the lawyer is acting in their official capacity as an elected official, not as a private attorney. Their conduct is therefore governed by public office laws, not the rules of professional conduct that apply to them as an attorney.
• Discretion vs. ministerial duty: In some cases, a law is not a simple, mandatory instruction but rather one that gives an official discretion in how to implement it. Suing for failure to perform a discretionary duty is extremely difficult because courts generally will not second-guess a public official's policy-based decision.
• Political vs. legal issue: An official's refusal to implement a state law is usually viewed as a political dispute to be resolved by political means, such as voting them out of office, not a legal one for the courts to decide.
• The requirement of harm: As discussed previously, you must show you suffered a unique, specific harm to have "standing" to sue. The refusal to implement a program that affects the general public is not considered sufficient for a personal lawsuit. 

"Officer of the court" obligations

While a lawyer is considered an "officer of the court," this duty typically obligates them to uphold the law in their professional capacity—for example, not presenting false evidence or lying to a judge. This obligation does not extend to forcing a public official to act in their legislative or executive role. Disciplinary action for a lawyer's misconduct is handled by the state bar association, and an official's inaction in office is not a matter for the bar. 

Alternatives to suing

• Involuntary removal from office: Some state laws, including in Kansas, provide a mechanism for removing officials for "inefficiency, neglect of duty, or misconduct in office". This process is typically initiated by another government body, such as a higher-ranking executive official or the courts, following a formal hearing.
• Citizen recall election: In some jurisdictions, citizens can initiate a recall election to remove a public official from office before their term is over. The requirements for this process are defined by state and local laws.
• Refer the issue to the Attorney General: The state Attorney General is the chief legal officer and is responsible for enforcing state law. If a local official is refusing to implement a state mandate, the AG has the authority to investigate and take action. Kansas has seen recent examples of this, as when the Attorney General filed a lawsuit against the Governor to compel the turning over of data.
• Organize political opposition: As a concerned citizen, you can rally support within the community to influence the official through protests, public pressure, and supporting an opponent in the next election.
• Pursue a lawsuit under civil rights law (very limited): If the official's failure to act can be framed as a systemic failure that deprives citizens of specific, protected constitutional rights, a lawsuit under 42 U.S.C. § 1983 may be possible. However, this is a very high legal bar to clear and requires proving an abuse of power, not just a policy disagreement. 

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Henry McClure 

Time kills deals

785-383-9994

www.henrymcclure.live