Opinion
Civil Action No. 99-2106-CM.
July 11, 2000.
Mark K. Birmingham, Kansas City, KS, for plaintiffs.
Douglas M. Greenwald, Daniel B. Denk and Gregory P. Goheen, McAnany, Van Cleave Phillips, P.A., Kansas City, KS, for defendants.
MEMORANDUM AND ORDER
Pending before the court is plaintiffs' response to this court's show cause order (Doc. 75). On November 8, 1999 this court issued an order dismissing several of plaintiffs' constitutional claims as to the individual defendants (Doc. 61). The court's order addressed claims raised within plaintiffs' amended petition for damages (Doc. 24). Within its order the court ordered plaintiffs to show cause:
why the Court should not (1) dismiss the state law constitutional claims to the extent it has dismissed their federal counterparts and (2) dismiss the claims against the municipal defendant which it has dismissed against the individual defendants [in both their official and individual capacities] on Rule 12(b)(6) grounds.
As stated herein, plaintiffs have failed to show cause why the noted claims, as raised in the amended complaint, should not be dismissed. However, the court's order does not address the viability of any constitutional claims raised in the plaintiffs' modified second amended complaint.
A. State Constitutional Claims
The court finds plaintiffs have failed to establish sufficient reason why their state law constitutional claims should survive a 12(b)(6) motion to dismiss for failure to state a claim where their federal counterparts did not.
The courts of Kansas may construe their state constitutional provisions independent of federal interpretation of corresponding provisions where such interpretation would afford the citizens of Kansas more protection from governmental intrusion. See State v. Alexander, 26 Kan. App.2d 192, 198, 981 P.2d 761, 765 (1999) (citing State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993)). However, the Kansas Supreme Court has recognized that "Although we have the right to interpret our Kansas constitution in a manner different than the United States Constitution has been construed, . . . we have not traditionally done so." State v. Scott, 265 Kan. 1, 5, 961 P.2d 667, 670 (1988). Plaintiffs present the court with no authority establishing that their claims for deprivation of rights guaranteed under the Kansas Constitution can be stated where their parallel federal constitutional claims have been dismissed. Accordingly, the court finds plaintiffs' state law constitutional claims fail to state a claim as explained in its November 8, 1999 order.
The only state law constitutional claims to survive the court's show cause order include: Count 6 (Kansas Bill of Rights Article 15 claim regarding the warrantless search on July 11, 1997 (8:15 a.m.) raised by Steve and Christine Perry); Count 10 (Kansas Bill of Rights Article 15 claim regarding the warranted search on July 11, 1997 (4:30 p.m.)); and Count 20 (Kansas Bill of Rights Article 15 claim regarding the warranted search on October 9, 1997 (1:50 p.m.)).
B. Constitutional Claims Raised Against Municipal Defendant
The court finds plaintiffs have failed to show cause why the constitutional claims dismissed against the individual defendants (in both their official and individual capacities) on Rule 12(b)(6) grounds should not also be dismissed against the municipal defendant (City of Kansas City, Kansas). Plaintiffs fail to state how their complaint could be construed to state viable constitutional claims for due process, equal protection, First Amendment retaliation or fundamental right of privacy against the municipal defendant. Accordingly, all constitutional claims raised against the City of Kansas City, Kansas are hereby dismissed.
Counts dismissed include: an unspecified count of First Amendment right to protected expression and freedom from retaliation claims; Count 18 — federal substantive due process claim and federal equal protection claim; Count 13 — constitutional invasion of privacy claim; Count 15 — constitutional procedural due process claim; Count 7 — constitutional Fourth Amendment Claim regarding the warrantless search on July 11, 1997; Count 3 — constitutional Fourth Amendment Claim regarding the warrantless search on July 10, 1997; and Count 25 — constitutional procedural due process claim.
The only federal constitutional claims raised against the City of Kansas City, Kansas to survive the court's show cause order include: Count 7 ( Fourth Amendment claim regarding the warrantless search on July 11, 1997 (8:15 a.m.) brought by Steve and Christine Perry); Count 11 ( Fourth Amendment claim regarding the warranted search on July 11, 1997 (4:30 p.m.)); and Count 21 ( Fourth Amendment claim regarding the warranted search on October 9, 1997 (1:50 p.m.)).
C. Order
Accordingly, IT IS ORDERED THAT plaintiffs' state constitutional claims as raised in their amended complaint (Doc. 24) are hereby dismissed, as specified herein. Further, it is ordered that the constitutional claims raised against the City of Kansas City, Kansas in the amended complaint, as specified herein, are dismissed.
Following this order regarding the sufficiency of plaintiffs' amended complaint under Rule 12(b)(6), the following claims remain pending in this matter:
1) State law tort claims against defendants as specified in amended complaint (Counts 1, 4, 5, 8, 9, 12, 13 (to the extent it asserts state law invasion of privacy claim), 14 (to the extent it asserts state law invasion of privacy claim), 16, 17, 19, 22, 23, 24, 26, 27, 28 and 29.
2) Federal Fourth Amendment claims (Counts 11 and 21) and the corresponding Kansas constitution claims (Counts 10 and 20) regarding the warranted searches conducted on July 11, 1997 (4:30 p.m.) and October 9, 1997 (1:50 p.m.) against defendants as specified in the Amended Petition; and
3) Federal Fourth Amendment claim (Count 7) and the corresponding Kansas constitution claim (Count 6) brought by Steve Perry and Christine Perry regarding the warrantless search on July 11, 1997 (8:15 a.m.) against defendants specified in Amended Petition.
The court notes that subsequent to filing its response to the court's show cause order, the plaintiffs sought leave to amend their amended complaint. Pursuant to this court's order, plaintiffs filed a modified second amended complaint (Doc. 91). This order does not address the viability of any constitutional claims raised in the plaintiffs' modified second amended complaint.