Scribner v. Bd. of Educ. of U.S.D. No. 492 , 419 P.3d 1149 ( 2018 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 116,818
SALLIE A. SCRIBNER and MARK E. MCNEMEE,
Appellants,
v.
BOARD OF EDUCATION OF U.S.D. NO. 492,
FLINTHILLS, BUTLER COUNTY, KANSAS,
Appellee,
and
THE STATE OF KANSAS,
Intervenor.
SYLLABUS BY THE COURT
1.
The 2014 Kansas Legislature did not violate the Due Process Clause of the
Fourteenth Amendment to the United States Constitution or Sections 1 and 2 of the
Kansas Constitution Bill of Rights when it enacted L. 2014, ch. 93, §§ 49, 50, 52, 53.
2.
Under the facts of this case, L. 2014, ch. 93, §§ 49, 50, 52, 53 did not cause a
breach of contract.
Appeal from Butler District Court; CHARLES M. HART, judge. Opinion filed June 15, 2018.
Affirmed.
David M. Schauner, of Kansas National Education Association, argued the cause and was on the
briefs for appellant.
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Edward L. Keeley, of McDonald Tinker PA, of Wichita, argued the cause, and Katy E. Tompkins,
of the same firm, was with him on the brief for appellee.
Dwight R. Carswell, assistant solicitor general, argued the cause, and Jeffrey A. Chanay, chief
deputy attorney general, Stephen R. McAllister, solicitor general, Dennis D. Depew, deputy attorney
general, M.J. Willoughby, assistant attorney general, Bryan C. Clark, assistant solicitor general, and
Derek Schmidt, attorney general, were with him on the brief for intervenor.
The opinion of the court was delivered by
LUCKERT, J.: For a period before July 1, 2014, the contracts of tenured elementary
and secondary teachers in Kansas school districts automatically continued into the next
school year unless a school district gave a timely, written notice of termination or
nonrenewal that set out the reasons for the termination or nonrenewal and notified the
teacher of his or her rights to a due process hearing. See K.S.A. 2013 Supp. 72-5436 to
72-5438, K.S.A. 72-5439, 72-5441 to 72-5444 (Furse 2002), K.S.A. 2013 Supp. 72-5445,
K.S.A. 72-5446 (Furse 2002). But the 2014 Kansas Legislature removed both (1) the
requirement that the Board state its reasons for the termination or nonrenewal and (2) the
right to a due process hearing. L. 2014, ch. 93.
Here, two teachers seek a judgment declaring the 2014 amendments to K.S.A. 72-
5436 et seq. (the Teacher Due Process Act) unconstitutional because the legislation
constituted a taking of their property without due process in violation of the Fourteenth
Amendment to the United States Constitution and Sections 1 and 2 of the Kansas
Constitution Bill of Rights. We reject the teachers' arguments.
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FACTS AND PROCEDURAL HISTORY
Plaintiffs Sallie A. Scribner and Mark E. McNemee filed a joint petition for
declaratory judgment and breach of contract in Butler County District Court. According
to their petition, both had been teachers employed by the Defendant Board of Education
of Unified School District No. 492, Butler County, Kansas (Board). In May 2015, almost
one year after the 2014 amendments became effective, the Board sent Scribner and
McNemee notices advising them the Board would not be renewing their teaching
contracts. The Board did not state its reasons for the decision or give notice of any due
process rights. These omissions, according to Scribner and McNemee, violated their
statutory rights as they existed before July 1, 2014, rights they contend were taken from
them without due process.
The Board answered the petition, contending it had complied with the law in effect
on May 2015 and the 2014 amendments were constitutional. The State moved to
intervene on Count I in order to defend the constitutionality of the 2014 amendments.
The district court granted the motion.
Both the teachers and the Board moved for summary judgment based on the
following stipulated facts (paragraphs 1-32):
"Parties
"1. The Defendant Board of Education of Unified School District No. 492,
Flinthills, Butler County, KS (Board or School District), is duly organized pursuant to
Article 6, Section 5 of the Kansas Constitution and Chapter 72 of the Kansas Statutes
Annotated.
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"2. Plaintiff Sallie A. Scribner was first employed as a teacher by the
defendant U.S.D. No. 492 beginning with the 1997-1998 school year.
"3. Ms. Scribner had been continuously employed as a teacher by the School
District for 18 consecutive years, from the beginning of the 1997-1998 school year
through the end of the 2014-2015 school year.
"4. Plaintiff Mark E. McNemee was first employed as a teacher by U.S.D.
No. 492 beginning with the 1999-2000 school year.
"5. Mr. McNemee had been continuously employed as a teacher by the
School District for 16 consecutive years, from the beginning of the 1999-2000 school
year through the end of the 2014-2015 school year.
"6. May 15, 2015, was the third Friday in May 2015. [Court's note: This
date is the statutory deadline for providing written notice of termination or nonrenewal.
See K.S.A. 2013 Supp. 72-5437(a). Absent such notice, teacher contracts continue for the
following school year.]
"7. At the May 12, 2015, meeting of the Board of Education of U.S.D. No.
492, the Board adopted resolutions directing that Plaintiffs be given notice of the Board's
intent to not renew their employment contracts for the 2015-2016 school year.
"8. The Board served Plaintiffs with written notices of its intent to not renew
their contracts for the 2015-2016 school year in notice letters from Stephanie Girty, the
Clerk of the Board, on May 12, 2015.
"H.B. 2506
"9. House Bill 2506 (H.B. 2506) was introduced into the state House of
Representatives on January 27, 2014. (2014 House Journal, p. 1621.)
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"10. H.B. 2506 was an act to repeal K.S.A. 72-60b03 relating to the
expiration provision of the Midwestern Higher Education Compact Act. (2014 House
Journal, p. 1621.)
"11. On January 28, 2014, H.B. 2506 was referred to the House Education
Budget Committee. (2014 House Journal, p. 1626.)
"12. A hearing on H.B. 2506 was held in the House Education Budget
Committee on February 19, 2014. (House Actions Report, p. 211.)
"13. H.B. 2506 was passed without amendment by the House by a 122-1 vote
on February 26, 2014. (2014 House Journal, p. 1791; House Actions Report, p. 211.)
"14. That same day, February 26, 2014, H.B. 2506 was introduced into the
Senate. (2014 Senate Journal, p. 1641; House Actions Report, p. 211.)
"15. On February 27, 2014, H.B. 2506 was referred to the Senate Committee
on Ways and Means. (2014 Senate Journal, p. 1661; House Actions Report, p. 211.)
"16. At the April 1, 2014, meeting of the Senate Committee on Ways and
Means, the committee voted to remove the contents of H.B. 2506 and replace it with the
contents of S.B. 452, creating Senate Substitute for H.B. 2506. (Minutes of the
Committee on Ways and Means, Tuesday, April 1, 2014, p. 5.)
"17. The original version of Senate Substitute for H.B. 2506 which was
passed by the Senate Ways and Means Committee on April 1, 2014, contained no
provisions that amended the Teacher Due Process Act, K.S.A. 2013 Supp. 72-5436
et seq. (2014 Senate Journal, p. 1942.)
"18. On Thursday, April 3, 2014, the Senate, having resolved itself into the
Committee of the Whole, voted multiple times to amend S. Sub. for H.B. 2506. (2014
Senate Journal, pp. 1986-2006.)
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"19. The last of the amendments to S. Sub. for H.B. 2506 approved by the
Senate on Thursday, April 3, 2014, was a proposal by Senator Arpke which made
amendments to the Teacher Due Process Act, K.S.A. 2013 Supp. 72-5436 et seq. (2014
Senate Journal, pp. 1994-2006.)
"20. No committee hearings were held in the Senate regarding Senator
Arpke's amendments to Senate Sub. for H.B. 2506. (House Actions Report, pp. 211-212.)
"21. Senator Arpke's amendments had not been considered by either house of
the Kansas legislature before they were added to S. Sub. for H.B. 2506 on April 3, 2014.
"22. After debate, Senate Substitute for H.B. 2506, as amended, was passed
by the Senate on April 3, 2014, by a vote of 23 to 17. (2014 Senate Journal, p. 2005.)
"23. On Friday, April 4, 2014, the House voted to nonconcur to S. Sub. for
H.B. 2506, as amended, and requested that a conference committee be appointed. (2014
House Journal, p. 2185.)
"24. A conference committee consisting of three members of each legislative
body was appointed on Friday, April 4, 2014, to reconcile the version of H.B. 2506,
which had been passed by the House and S. Sub. for H.B. 2506, as amended, which had
been passed by the Senate. (2014 House Journal, pp. 2185; 2014 Senate Journal, p. 2010.)
"25. On Saturday, April 5, 2014, the conference committee failed to reach
agreement on S. Sub. for H.B. 2506, as amended. On Sunday, April 6, 2014, the
conference committee report to agree to disagree was adopted by both legislative bodies
and a second conference committee was appointed. (2014 House Journal, p. 2294; 2014
Senate Journal, p. 2243.)
"26. Later on Sunday, April 6, 2014, the second conference committee
reached agreement on S. Sub. for H.B. 2506, as amended, when the House acceded to all
Senate amendments. The second conference committee issued its conference committee
report.
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"27. After debate, the House voted to adopt the second conference committee
report on S. Sub. for H.B. 2506 later on Apri1 6, 2014, by the vote of Yeas 63 to Nays
57. (2014 House Journal, pp. 2294, 2342.) That vote approved S. Sub. for H.B. 2506, as
amended, including Senator Arpke's amendments.
"28. After debate, the Senate also voted to adopt the second conference
committee report on S. Sub. for H.B. 2506 on April 6, 2014, by the vote of Yeas 22 to
Nays 16. (2014 Senate Journal, p. 2292.) That vote approved S. Sub. for H.B. 2506, as
amended, including Senator Arpke' s amendments.
"29. Governor Brownback signed S. Sub. for H.B. 2506, as amended, on
April 21, 2014. (2014 House Journal, p. 2347.)
"30. Senate Sub. for H.B. 2506, as amended, took effect and was in force
from and after its publication in the Kansas Register. (2014 Kansas Session Laws, Ch. 93,
§ 68.)
"31. Senate Sub. for H.B. 2506 was published in the Kansas Register on May
1, 2014. (33 Kansas Register, No. 18, May 1, 2014, pp. 438-455.)
"32. K.S.A. 2013 Supp. 72-5436, 72-5437, 72-5438, 72-5439, 72-5445, and
72-5446 of the Teacher Due Process Act were amended by S. Sub. for H.B. 2506
effective July 1, 2014. (2014 Kansas Session Laws, Ch. 93, § 67.)"
The district court considered these stipulated facts and, after hearing oral
argument, orally ruled in favor of the Board. The district court later filed a journal entry
making findings of fact and conclusions of law. In these, the district court stated the 2014
amendments were "clear and unambiguous" in providing that the due process protections
of the prior law no longer applied "to any K-12 teachers." This change did not deny due
process, the district court ruled, because "when legislation affects a general class of
people, the legislative process provides all the process that is due."
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The district court noted Scribner's and McNemee's reliance on Darling v. Kansas
Water Office, 245 Kan. 45, 774 P.2d 941 (1989). But the district court distinguished
Darling because "[t]he 'unique set of facts' and unusual situation" discussed in Darling
are "not present here. Instead, the foundational general rule that the legislative process
provides all the process that is due controls in this case." The court also noted that K.S.A.
72-5444 expressly prohibited it from declaring that Scribner and McNemee "had a 'vested
right' which was not subject to amendments or nullification by the legislature."
As to Scribner's and McNemee's breach of contract claim, the district court
concluded their theory of recovery would have required the Board to disregard the 2014
amendments and apply prior law, even though the prior law no longer existed. The
district court held this theory lacked merit because "[t]he school board cannot have
breached plaintiffs' employment contracts by following the law in place at the time."
Scribner and McNemee timely appealed and moved to transfer the case to this
court. We granted the transfer motion. See K.S.A. 2017 Supp. 20-3017; Kansas Supreme
Court Rule 8.02 (2018 Kan. S. Ct. R. 52).
ANALYSIS
The parties ask us to draw various conclusions based on Kansas law about the due
process protections afforded to teachers. Thus, before delving into the specifics of the
issues presented by Scribner and McNemee, we will briefly review the history of the
various statutory protections and the caselaw interpreting those statutes.
The Kansas Legislature first provided teachers statutory protections in 1937 in the
Tenure of Instructors Act, which applied to "[t]eachers and other professional employees,
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employed in public school systems in cities having a population of 120,000 inhabitants or
more." Gillett v. U.S.D. No. 276, 227 Kan. 71, 75, 605 P.2d 105 (1980). The Tenure of
Instructors Act provided instructors continued employment "'during good behavior and
efficient and competent service,'" and limited a board's authority to discharge or
nonrenew a teacher except for the causes provided by statute and after notice and an
opportunity for a hearing. Million v. Board of Education, 181 Kan. 230, 231-32, 310 P.2d
917 (1957) (quoting G.S. 1949, 72-5404).
The "evident purpose" of the legislation was "to protect competent and worthy
instructors and other members of the teaching profession against unjust dismissal of any
kind—political, religious or personal, and secure for them teaching conditions which will
encourage their growth in the full practice of their profession, unharried by constant
pressure and fear." Million, 181 Kan. at 234. But local boards of education retained the
power to discharge teachers "for just cause in an orderly manner by the procedures
specified." 181 Kan. at 234.
The Kansas Legislature repealed the Tenure of Instructors Act in 1974 and
replaced it with K.S.A. 72-5436 et seq. See Gillett, 227 Kan. at 76. The 1974 legislation
established "a comprehensive due process procedure covering the termination or
nonrenewal of teacher[s'] contracts in every school district, area vocational-technical
school, and community junior college in the state." 227 Kan. at 76. This court determined
that the 1974 "statutory scheme," which provided "tenure for all school teachers
throughout the state[,] has the same purpose as that of the Tenure of Instructors Act
which is discussed in Million." 227 Kan. at 76. This court later dubbed K.S.A. 72-5436
through 72-5446 as the "Teacher Due Process Act" or TDPA. The scope of the TDPA
remained as stated in Gillett until the 2014 amendments were enacted.
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Under the pre-2014 version of the TDPA, persons defined as "teachers" had a right
of continuing contract: "All contracts of employment of teachers, as defined in K.S.A.
72-5436, . . . shall be deemed to continue for the next succeeding school year unless
written notice of termination or nonrenewal is served as provided in this subsection."
K.S.A. 2013 Supp. 72-5437(a). Certain procedural protections applied if a teacher had
completed three consecutive years and received a fourth contract offer by the same
school district or if the teacher had accumulated specified periods of service in more than
one district. See K.S.A. 2013 Supp. 72-5445(a). Although this provision did not use the
term "tenure," that term has been used colloquially to describe the years of service
requirement. We use "tenure" in this decision as a short form for discussing the
consecutive years of employment requirement.
Under the procedural requirements of the pre-2014 TDPA, to terminate or to not
renew a contract for a tenured teacher, a school board had to provide notice by the third
Friday in May of the reasons for the decision and inform the teacher of his or her right to
a hearing. K.S.A. 2013 Supp. 72-5437(a); K.S.A. 2013 Supp. 72-5438(a). When
requested, the school board had to comply with due process hearing procedures specified
by the statute. See K.S.A. 2013 Supp. 72-5436 et seq.
The pre-2014 TDPA defined "teachers" to include "any professional employee
who is required to hold a certificate to teach in any school district, and any teacher or
instructor in any area vocational-technical school or community college." K.S.A. 2013
Supp. 72-5436(a). A "Board" was defined as, "the board of education of any school
district, the board of control of any area vocational-technical school and the board of
trustees of any community college." K.S.A. 2013 Supp. 72-5436(b).
By July 1, 2014, Scribner and McNemee had satisfied the years of service
requirement that gave them procedural rights under the pre-2014 TDPA. Thus, until
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July 1, 2014, they had a right of continuing contract. And if they had been terminated or
not renewed by the third Friday in May—before the 2014 amendments became effective
on July 1—they would have been entitled to the procedural protections of a notice that
stated the reasons for the Board's decision and a due process hearing.
Under the 2014 amendments, a school district must still provide a notice of
nonrenewal before the third Friday in May to prevent a teacher's contract from renewing.
K.S.A. 2017 Supp. 72-2251(a). But if the district gives a timely notice of nonrenewal, the
TDPA's statutory due process protections are no longer available to elementary and
secondary teachers. Only a "teacher or instructor in any technical college, the institute of
technology at Washburn university or community college" receive the procedural
protection formerly available to them and all elementary and secondary teachers. K.S.A.
2017 Supp. 72-2252(a). And a board is now defined as "the governing body of any
technical college or the institute of technology at Washburn university, and the board of
trustees of any community college." K.S.A. 2017 Supp. 72-2252(b). The statute no longer
includes the boards of education of public school districts. Thus, by the plain language of
the 2014 amendments, teachers in school districts no longer benefit from the TDPA's
procedural right of a notice listing the reasons for a board's decision or the right to
request a hearing.
The Kansas National Education Association brought suit against the State
challenging the 2014 amendments, arguing the Legislature had violated the single-subject
rule of Article 2, § 16 of the Kansas Constitution. Although we determined the KNEA
had standing, in part because it was alleged that KNEA members lost "valuable rights"
under the 2014 amendments, we held the legislation did not violate the single-subject
rule. KNEA v. State, 305 Kan. 739, 747, 760, 387 P.3d 795 (2017).
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Scribner and McNemee brought this separate suit alleging individual harm. Their
case depends on the stipulated facts and, according to them, when the Board did not
renew Scribner's and McNemee's contracts by the third Friday in May 2015, they were
both provided the notice required by the statute then in effect—the statute as amended
effective July 1, 2014. See K.S.A. 2014 Supp. 72-5437. In other words, the Board fully
complied with current TDPA provisions. Against that factual situation, we determine
whether the 2014 amendments violated their constitutional rights.
ISSUE 1: Did Scribner and McNemee have a property interest that is entitled to
constitutional protection under either the federal or state constitution?
Scribner and McNemee first challenge the constitutionality of the 2014
amendments. Scribner and McNemee separate their challenge into two theories: (1) The
Legislature retroactively took away a vested right and (2) the Legislature violated the
Fourteenth Amendment to the United States Constitution and Sections 1 and 2 of the
Kansas Constitution Bill of Rights by depriving them of a property interest without due
process. Both theories present an issue of law to which this court applies unlimited
review. See Miller v. Johnson, 295 Kan. 636, 646-47, 289 P.3d 1098 (2012).
Scribner and McNemee note this court has previously stated that Sections 1 and 2
of the Kansas Constitution Bill of Rights have "much the same effect" as the Due Process
and Equal Protection Clauses found in the Fifth and Fourteenth Amendments to the
United States Constitution. Generally, this statement has been made in cases where a
party asserts violations of both constitutions and relies on cases applying the United
States Constitution without making unique arguments about Sections 1 and 2. E.g., State
v. Limon, 280 Kan. 275, 283, 122 P.3d 22 (2005). But we have also held these provisions
provide stronger rights than the Fourteenth Amendment. E.g., Farley v. Engelken, 241
Kan. 663, 740 P.2d 1058 (1987). Because neither party makes arguments unique to
Sections 1 and 2 nor argues any distinction between the rights granted by the two
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constitutions, we will not delve in any potential differences. Instead, we will assume,
without discussion, the Fourteenth Amendment and Sections 1 and 2 grant the same due
process rights.
We combine our discussion of Scribner's and McNemee's vested rights and due
process theories because "the vested rights analysis is inseparable from the ultimate due
process inquiry." Brennan v. Kansas Insurance Guaranty Ass'n, 293 Kan. 446, 460, 264
P.3d 102 (2011); Resolution Trust Corp. v. Fleischer, 257 Kan. 360, 365, 892 P.2d 497
(1995). As we will discuss, even if Scribner and McNemee had a property right, they did
not enjoy a vested right that could not be removed or altered through due process. To
explain, we turn to Scribner's and McNemee's due process theory that the Legislature
divested their property right without due process.
Our caselaw supports the first part of this theory. In past decisions, this court has
held the TDPA created a property right. E.g., McMillen v. U.S.D. No. 380, 253 Kan. 259,
264, 855 P.2d 896 (1993) ("[A] tenured teacher's right to continued employment is a
property right subject to the protections of due process."); Kelly v. Kansas City, Kansas
Community College, 231 Kan. 751, Syl. ¶ 3, 760, 648 P.2d 225 (1982) ("A tenured
teacher has an expectation of continued employment which qualified for constitutional
protections as a species of property."). The State, as the Intervenor, argues this court
incorrectly decided these cases.
We need not revisit the holdings in McMillen or Kelly, however. Even if Scribner
and McNemee had a property interest, it does not necessarily follow that the right had
vested in a way that the Legislature could not remove the right through due process.
K.S.A. 2017 Supp. 72-2259, which has not been amended since enacted in 1974, makes
this clear. It states, in relevant part: "Nothing in this act shall be construed to create any
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right, or to authorize the creation of any right, which is not subject to amendment or
nullification by act of the legislature." (Emphasis added.)
In addition, as the district court noted, the legislative process itself generally
provides all the process that is due when legislation results in the complete or partial
deprivation of protected property interests of more than a few individuals. The United
States Supreme Court made this point in Logan v. Zimmerman Brush Co., 455 U.S. 422,
102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982). There, the Court pointed to situations in which
a state legislature passed legislation that impacted protected property interests, including
laws that granted state officials immunity from some tort claims and laws that adjusted
welfare benefit levels. The Logan Court concluded: "In each case, the legislative
determination provides all the process that is due." 455 U.S. at 433.
Logan traced this concept back to Bi-Metallic Investment Co. v. State Board of
Equalization, 239 U.S. 441, 36 S. Ct. 141, 60 L. Ed. 372 (1915), in which the Court
refused to enjoin enforcement of an order of the Colorado State Tax Commission and
State Board of Equalization increasing the valuation of all taxable property in Denver. A
Denver property owner argued he had not been given an opportunity to be heard and the
order therefore violated due process. In rejecting that argument, the Court noted: "Where
a rule of conduct applies to more than a few people, it is impracticable that everyone
should have a direct voice in its adoption." Bi-Metallic Investment Co., 239 U.S. at 445.
Instead, "the body intrusted by the state Constitution with the power" may pass
legislation that affects "the person or property of individuals, sometimes to the point of
ruin, without giving them a chance to be heard." 239 U.S. at 445.
Other courts have consistently applied this rule to the reduction or elimination of
protections for public employees. E.g., Dibble v. Quinn, 793 F.3d 803, 808-10 (7th Cir.
2015) (arbitrators' terms were legislatively shortened); Rea v. Matteucci, 121 F.3d 483,
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484-85 (9th Cir. 1997) (hearing officer position legislatively changed from classified to
unclassified position); McMurtray v. Holladay, 11 F.3d 499, 504-05 (5th Cir. 1993) (state
employees temporarily exempted from due process procedures during departmental
reorganization); Gattis v. Gravett, 806 F.2d 778, 781 (8th Cir. 1986) (state employees
recategorized so they no longer received protections of personnel system); Connecticut
Educ. Ass'n, Inc. v. Tirozzi, 210 Conn. 286, 297-300, 554 A.2d 1065 (1989) (change to
teacher certification requirement imposing continuing education requirement); Fumarolo
v. Chicago Bd. of Educ., 142 Ill. 2d 54, 105-08, 566 N.E.2d 1283 (1990) (nature of
principals' contracts legislatively changed from statutory right to continued employment
to performance contract that terminated unless renewed).
The Seventh Circuit opinion in Dibble provides a recent and thorough discussion
of the rule that the legislative process provides constitutional due process. Dibble
considered challenges raised by two state-employed arbitrators. The arbitrators had been
serving six-year terms under the protection of the Illinois Personnel Code, which meant
they could only be removed for cause during their terms of service. The Legislature
changed the appointment procedure. As part of this change, the Legislature ended the
terms of all arbitrators three days after the bill passed and granted the governor discretion
to reappoint the arbitrators. He reappointed one of the two plaintiff-arbitrators to a one-
year term and did not reappoint the other. Both argued the legislation deprived them of a
protected property interest, and the Seventh Circuit agreed. 793 F.3d at 808. That
conclusion did not end the analysis, however. Likewise, we have assumed Scribner and
McNemee had a protected property interest, but that conclusion does not end our analysis
either.
The Seventh Circuit framed the next question as "whether the legislation deprived
the [arbitrators] of their property interests without due process of law." 793 F.3d at 809.
The court cited "the general rule that the legislature, having created a statutory
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entitlement, is not precluded from altering or even eliminating the entitlement by later
legislation." 793 F.3d at 809 (citing Atkins v. Parker, 472 U.S. 115, 105 S. Ct. 2520, 86
L. Ed. 2d 81 [1985]). "Were the rule otherwise, '[s]tatutes would be ratchets, creating
rights that could never be retracted or even modified without buying off the groups upon
which the rights had been conferred.'" 793 F.3d at 809 (quoting Pittman v. Chicago Bd. of
Educ., 64 F.3d 1098, 1104 [7th Cir. 1995]).
This general rule does not deprive individuals of all protection. "They have the
opportunity to contest the legislative determination through the processes of
representative government." 793 F.3d at 809 (citing Bi-Metallic Investment Co., 239 U.S.
at 445). Given that, the Seventh Circuit rejected the arbitrators' argument and concluded
the arbitrators "failed to demonstrate a clearly established right that was violated by
legislation ending their six-year terms as arbitrators." 793 F.3d at 814. Exceptions exist,
however. These exceptions protect "'the individual citizen from state action that is wholly
arbitrary or irrational.' . . . Similarly, an individual claiming a defect in the legislative
process might have a claim for due process violations." Rea, 121 F.3d at 485 (quoting
Logan, 455 U.S. at 433; citing Atkins, 472 U.S. at 130).
Scribner and McNemee cite Rea and argue the 2014 amendments are arbitrary and
irrational and the legislative process was defective. In their reply brief they cite Pool v.
McKune, 267 Kan. 797, 804-05, 987 P.2d 1073 (1999), which in turn cites Turner v.
Safley, 482 U.S. 78, 89-90, 107 S. Ct. 2254, 96 L. Ed. 2d 65 (1987). Based on those
cases, Scribner and McNemee suggest this definition: "An action is arbitrary or irrational
when there is no rational connection between state action and the legitimate
governmental interest put forward to justify it." Neither Pool, which dealt with
reasonableness under the search and seizure provisions of the Fourth Amendment to the
United States Constitution, nor Turner state this exact definition. Moreover, those cases
provide no support for applying this test in the context presented by this case.
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Even if the Pool/Turner test applies, Scribner and McNemee have failed to
support their argument. They suggest we must find the legislation arbitrary because the
senator who proposed the floor amendments did not justify the change. Nor did any other
legislator do so during the process that followed the floor amendment. But they do not
cite authority suggesting legislators must explain their actions on the record. And
typically, when examining the rationality of government actions, courts examine whether
there is any conceivable basis to support the action, even if that basis did not motivate the
governmental body. See Downtown Bar and Grill v. State, 294 Kan. 188, 195, 273 P.3d
709 (2012). Here, however, Scribner and McNemee did not present this argument to the
district court. In addition, by waiting until their reply brief before this court to raise the
definitional argument, they left no opportunity for the Board or the State to adequately
respond. Consequently, Scribner and McNemee have not preserved this question for our
review. See Sierra Club v. Mosier, 305 Kan. 1090, 1134, 391 P.3d 667 (2017).
Scribner and McNemee make some additional assertions, which they argue
establish that the Legislature acted arbitrarily. But these assertions go beyond the
stipulated facts. And Scribner and McNemee took no steps, such as asking us to take
judicial notice, to put those facts before us. See K.S.A. 60-412; K.S.A. 60-409; see also
Gannon v. State, 305 Kan. 850, 870-73, 390 P.3d 461 (2017). As a result, we do not have
the necessary factual basis to consider those assertions.
This leaves the question of whether the process itself was so defective that we
must consider it arbitrary or irrational. In arguing it was, Scribner and McNemee rely on
Darling, which involved a "unique set of facts" where the Kansas Legislature singled out
"[a] handful of employees in a specific state agency" for termination. 245 Kan. at 48. The
legislation also deprived the employees of their rights under the Kansas Civil Service
Act. The changes in the law occurred as "a convenience to the agency's director," who
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testified at "his deposition that termination through the civil service procedure was
difficult and time consuming, and that the statute was beneficial as it gave him the
flexibility he desired." 245 Kan. at 48.
The Darling court rejected the defendants' position that the Legislature had
afforded due process, concluding the argument was "illogical in the framework of the
facts herein." 245 Kan. at 49. The court emphasized that the legislation at issue did not
apply generally but only to "known and identifiable individuals." 245 Kan. at 50. The
court also noted that the agency's director actively discouraged the employees from
lobbying against the bill by reminding them he would make the rehiring decisions and,
when doing so, he would take into account whether an employee had actively opposed
the bill. 245 Kan. at 50-51. On those unique facts, the Darling court concluded the
legislation violated procedural due process. 245 Kan. at 52. Accord Bi-Metallic
Investment Co., 239 U.S. at 445-46 (distinguishing legislation that applies "to more than a
few people" from legislation at issue in Londoner v. Denver, 210 U.S. 373, 385, 28 S. Ct.
708, 52 L. Ed. 1103 [1908], which involved a tax levy impacting "[a] relatively small
number of persons . . . who were exceptionally affected, in each case upon individual
grounds").
Unlike Darling, the 2014 amendments at issue here applied to all tenured teachers
employed by all Kansas school districts. In addition, the Kansas Legislature did not
terminate any teacher's employment and did not prohibit any school district from
contracting with its teachers under the same terms as had been in the pre-2014 TDPA.
Even so, Scribner and McNemee argue the holding of Darling still applies because of
shortcomings with the legislative process employed in passing the 2014 amendments.
As previously set out, the history of the legislation reveals that no committee in
either chamber of the Legislature held hearings at which members of the public could
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testify about the amendments to the TDPA. Instead, the first mention of the amendments
came on the Senate floor, where senators introduced them and passed the amended bill on
the same day, a Thursday. On the following Sunday, a conference committee agreed, and
the House passed the TDPA amendments.
Scribner and McNemee focus on the truncated consideration of the TDPA and the
resulting lack of opportunity to testify or provide meaningful input before the
amendments to the TDPA became law. In their view, these circumstances show a defect
in the legislative process that denied them due process. They argue the legislative process
gave them no notice or a hearing. But they do not cite any case in which a court has
imposed these notice and hearing requirements when legislation that impacts a broad
class of people caused the deprivation, which we assume the legislation has done here.
Nor do they cite any laws or rules that prohibit the procedures used by the Legislature.
Contrary to Scribner's and McNemee's arguments, as we have discussed, a
significant body of caselaw establishes that a hearing is not a due process requirement for
the adoption of legislation: "[T]he Supreme Court long ago established that the federal
Constitution does not require a hearing on the adoption of legislation." Onyx Props. v.
Bd. of Com'rs Elbert Cty., 838 F.3d 1039, 1044-45 (10th Cir. 2016) (citing United States
v. Locke, 471 U.S. 84, 108, 105 S. Ct. 1785, 85 Lans. Ch. 2d. 2d 64 [1985]; Logan, 455 U.S. at
433; Bi-Metallic Investment Co., 239 U.S. at 445-46). And public notice occurred when
the Senate adopted the amendments and sent the amendments to the House for
consideration.
The State cites cases that further bolster its argument that nothing more was
required. For example, it highlights the United States Supreme Court's statements in
Minnesota Bd. for Community Colleges v. Knight, 465 U.S. 271, 285, 104 S. Ct. 1058, 79
L. Ed. 2d 299 (1984). There, the Court held: "The Constitution does not grant to
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members of the public generally a right to be heard by public bodies making decisions of
policy." 465 U.S. at 283. The Court noted it had rejected a similar claim founded on the
Due Process Clause of the Fourteenth Amendment in Bi-Metallic. The Court also
commented:
"Policymaking organs in our system of government have never operated under a
constitutional constraint requiring them to afford every interested member of the public
an opportunity to present testimony before any policy is adopted. Legislatures throughout
the nation, including Congress, frequently enact bills on which no hearings have been
held or on which testimony has been received from only a select group. Executive
agencies likewise make policy decisions of widespread application without permitting
unrestricted public testimony. Public officials at all levels of government daily make
policy decisions based only on the advice they decide they need and choose to hear. To
recognize a constitutional right to participate directly in government policymaking would
work a revolution in existing government practices." 465 U.S. at 284.
We find these authorities persuasive and conclude that constitutional due process
does not require the Legislature to conduct a hearing before repealing legislation that
granted a right to procedural due process. We therefore reject Scribner's and McNemee's
argument that the 2014 Legislature deprived them of due process by passing legislation
without providing notice or a hearing.
Overall, although Scribner and McNemee criticize the legislative process and the
lack of transparency, their criticisms, even if valid, do not equate to a constitutional
violation. The legislation here impacted a broad class of people, not a targeted group of
limited and identifiable individuals. The changes were comparable to a change in status
from classified to declassified status, and as discussed, courts have often upheld those
legislative changes when attacked on due process grounds. In addition, no one here
dissuaded the affected people from lobbying, although as a practical matter, their window
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in which to do so was small if not nonexistent. And the legislative process followed its
regular course. Both chambers met to reconcile the differences, including the
amendments to the TDPA. Each chamber independently had an opportunity to debate the
bill before the chamber voted to pass the bill.
Passage of L. 2014, ch. 93, §§ 49, 50, 52, 53 did not violate the Due Process
Clause of the Fourteenth Amendment to the United States Constitution or Sections 1 and
2 of the Kansas Constitution Bill of Rights.
ISSUE 2: Did the Board violate the teachers' continuing contract right by failing to
employ them for the 2015-16 school year and thereafter?
Scribner and McNemee premise their breach of contract argument on their
position that the 2014 amendments to the TDPA cannot be applied and therefore the pre-
2014 version of the statute applied. They do not base their claim on their actual contracts
with the Board.
The stipulated facts establish that the Board complied with the statutory
requirements in effect in May 2015. Thus, Scribner's and McNemee's continuing contract
claim also fails.
Affirmed.
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