Mighty oaks from little acorns grow

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Judge upholds Sunday liquor sales in KCK, Edwardsville KS
By MARK WIEBE-The Kansas City Star

A judge ruled Tuesday that liquor stores can open on Sunday in Kansas City, Kan., and Edwardsville, the first cities to receive approval to lift a statewide ban.

Wyandotte County Judge John J. Bukaty Jr. said in a written decision that the two cities had a right to set their own rules on Sunday liquor sales and that neither the court nor the state can interfere with that decision.

"Regardless of the court's opinion about the merits of the cities' action," Bukaty wrote, "it may not substitute its judgment for that of the governing body of the cities or the voters who voted in favor of the action."

Merrill Wright, owner of Wright Liquor Store, 8014 Leavenworth Road in Kansas City, Kan., welcomed the decision, the first significant ruling in a case that dates to November.

"We're happy," Wright said. "It's a great day for Wyandotte County. We took on the state, and we beat them. It's going to mean more tax dollars for the state."

A spokesman in Attorney General Phill Kline's office, which had sought the judge's opinion, said that Kline was in Washington this week and would review the decision when he returned. The spokesman said Kline then will determine what action to take.

Hal Walker, the chief counsel for Wyandotte County's Unified Government, praised the ruling, saying the issue was about more than Sunday alcohol sales.

"It's about the ability of a municipality to provide its citizens with a choice," Walker said. "In this case, we have a choice. I don't have to go out and buy booze on Sunday, but if I want to, I don't have to go to Missouri to do it."

The issue, at its core, pitted the cities' home-rule powers against a statewide prohibition on Sunday package-liquor sales.

The battle was engaged, in effect, at the November general election, when nearly 60 percent of voters approved an ordinance lifting the ban in Kansas City, Kan. Earlier in the year, Edwardsville's City Council approved a charter ordinance exempting itself from the ban.

The state initially tried to enforce the ban but eventually decided to settle the matter in court by asking a judge to rule on the legality of the ordinance. The state agreed not to enforce the ban in the two cities until a court ruling.

The issue has centered on whether cities have the right to exempt themselves from the 1949 Liquor Control Act.

In a Feb. 21 hearing before Bukaty, Unified Government Assistant Attorney Henry Couchman argued that an exemption was allowed because the act did not apply uniformly to all cities.

The state's home-rule amendment to the constitution, adopted in 1961, permits cities to exempt themselves from nonuniform acts. Couchman argued that even if the provision in question applied uniformly, as the Sunday ban does, the local exemption still was legal.

The state, however, argued that the Liquor Control Act did not apply to cities within the meaning of the home-rule amendment. The act's primary purpose, they said, was to regulate the relationship between the state and liquor stores; it was not the kind of legislation from which the home-rule amendment intended to allow cities to exempt themselves.

The state also argued that a precedent could be set in which cities could exempt themselves from other provisions of the Liquor Control Act, such as prohibiting minors from buying alcohol.

Bukaty's ruling hinged on the fact that not all the act's provisions apply uniformly to all cities.

"It matters not that the individual provision the (cities) opted out of applies uniformly," he wrote. "If any of the provisions of the enactment...are not uniform in their application, then the home rule amendment allows the (exemption)."

What's more, he ruled, the state constitution does not give the state exclusive authority to regulate alcohol. Citing a provision that allows voters to determine whether a county may sell liquor by the drink, Bukaty concluded that the provision "makes the regulation of alcohol a matter of both statewide and local concern to a certain extent."

The provision, he wrote, "does not reserve the area of liquor control to the state exclusive of local input."

Bukaty also noted that the cities' actions found their authority in the state constitution, which, he said, takes precedence over statutes.

Bukaty punctuated his ruling with a quote from the constitution, saying the ruling "is in accord with the home-rule amendment's mandate that it...be liberally construed for the purpose of giving to cities the largest measure of self-government."

http://www.kansascity.com/mld/kansascity/news/local/5424077.htm