City files lawsuit to block road vote

November 15, 2006

The city of Tonganoxie is taking 354 of its citizens to court.

In a lawsuit filed Monday in Leavenworth County District Court, the city of Tonganoxie is asking a judge to rule that a petition seeking a vote on funding for County Road 1 is invalid. The petition, signed by 354 local residents, calls for a vote on the city's financial participation in a project to upgrade the county road. Improving the road is part of a larger project that includes a new Kansas Turnpike interchange.

The city council had a two-part reaction to the petition. Council members agreed to hold a citywide election. But the council also decided to challenge the validity of the petition in court.

If the city prevails in the lawsuit, no vote would be held.

The lawsuit names as defendants all local residents who signed the petition. And city attorney Mike Kelly said he had no choice but to include all of the signers as defendants.

"That's the unfortunate part about this: Some people are going to be surprised, and they shouldn't panic if they get a copy of the petition and the summons," Kelly said. "It's their decision as to what they want to do."

The city currently is serving the petition signers with notice of the lawsuit.

And, in fact, Kelly himself has handled some of the duties.

"I don't want them to get shocked when they get it," he said.

In the lawsuit, Kelly maintains the issue of whether to spend city funds on the county road is "not a proper issue for referendum because it seeks to restrict the administrative authority of the city which is reserved to the governing body."

In addition, if city residents were to vote against expenditure of funds on County Road 1, Kelly said, that would tie the city's hands.

The city's southern boundary is less than a mile from the county road, the lawsuit noted. If the city annexes land along the county road, the city would be required to spend money to maintain the road, the suit said.

The lawsuit also questioned the form of the petition, saying some copies of the petition included words that were changed.

Kelly said he was uncertain what timetable the lawsuit would follow, as it progresses through district court.

"A lot could happen before the county clerk has to start work on it (the election)," he said. "The judge could delay the election. Any party could ask for a stay. The timetable is uncertain, more than anything."

Regardless of how the judge rules, that ruling could be appealed, Kelly said.

Phyllis Shilling, who along with her husband, Roger, was among organizers of the petition drive, said she's sending a letter to those who signed the petition. In the letter, Shilling said, she's telling petition-signers that there's no need for them to hire an attorney. The Shillings have retained Lawrence attorney Price Banks to represent them and other petition-signers in the lawsuit.

"We don't expect any compensation from anybody who signed it," she said. "I don't want anyone to think there's going to be a charge to them."

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