Norris v. Kansas Employment Security Board of Review

No. 109,428

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

PATRICIA NORRIS,
Appellant,

v.

KANSAS EMPLOYMENT SECURITY BOARD OF REVIEW,
Appellee.

SYLLABUS BY THE COURT

1.
Whether jurisdiction exists is a question of law over which an appellate court's
scope of review is unlimited.

2.
An appellate court exercises unlimited review on questions of statutory
interpretation without deference to an administrative agency's or board's interpretation or
construction of its authorizing statutes.

3.
Actions of the Kansas Employment Security Board of Review are subject to
judicial review under the Kansas Judicial Review Act, K.S.A. 77-601 et seq., as provided
in K.S.A. 2013 Supp. 44-709(i).

4.
A party affected by the Kansas Employment Security Board of Review's decision
may seek reconsideration by the Board within 16 days of the date of the Board's mailing

1
of the decision. After 16 days, the Board's decision becomes final and is not subject to
reconsideration by the Board pursuant to K.S.A. 2013 Supp. 44-709(i).

5.
If reconsideration of the Kansas Employment Security Board of Review's decision
has not been requested, a petition for judicial review of a final order shall be filed within
30 days after service of the order under K.S.A. 77-613(b).

6.
If reconsideration of the Kansas Employment Security Board of Review's decision
has been requested, a petition for judicial review of a final order shall be filed within 30
days after service of the order rendered upon reconsideration or within 30 days after
service of an order denying the request for reconsideration under K.S.A. 77-613(c).

7.
If the Kansas Employment Security Board of Review does not act on a petition for
reconsideration within 20 days after the filing of the petition for reconsideration, the party
may petition for judicial review of the final order at any time within 90 days of service of
such final order as provided by K.S.A. 2013 Supp. 77-529(b) and K.S.A. 2013 Supp. 77-
631(b).

Appeal from Shawnee District Court; REBECCA W. CROTTY, judge. Opinion filed March 21,
2014. Reversed and remanded.

Matthew C. Hull, of Topeka, for appellant.

Justin McFarland, deputy general counsel and special assistant attorney general, of Kansas
Department of Labor, for appellee.

Before ARNOLD-BURGER, P.J., BUSER and STANDRIDGE, JJ.

2
 BUSER, J.: Patricia Norris appeals the district court's dismissal of her petition for
review of the Kansas Employment Security Board of Review's (Board) decision denying
her request for unemployment benefits. The district court ruled that it lacked jurisdiction
over Norris' petition because she failed to file it in a timely manner.

This case requires us to decide whether the time period to file a petition for
judicial review from a decision of the Board is solely controlled by the Kansas
Employment Security Law (KESL), K.S.A. 44-701 et seq., or whether, and to what
extent, the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., is also applicable.
The Board contends the time period is controlled by the KESL alone and that Norris filed
her petition for review out of time. We agree with Norris, however, that the KJRA also
applies and that both acts should be read together and in harmony. Accordingly, we hold
that Norris filed a timely motion for reconsideration with the Board and a timely petition
for judicial review with the district court, which resulted in the district court having
jurisdiction to consider this unemployment compensation case. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Norris worked as a service technician for Air and Fire Systems from 2008 until
2011 when she voluntarily terminated her employment. As alleged by Norris, she left her
employment because the company's president was wrongfully withholding commissions
and behaving in an unprofessional manner.

Norris applied for unemployment benefits, but on August 30, 2011, an examiner
for the Kansas Department of Labor (KDOL) denied her request, finding that Norris left
work "without good cause attributable to the work or the employer." Norris timely
appealed the examiner's decision. After a telephone hearing, the referee affirmed the
examiner's decision because Norris "ha[d] not shown that her voluntar[y] separat[ion]

3
from her employment was due to an emergency or that she could not have waited to quit
until she found new employment."

Norris appealed the referee's adverse decision to the Board. On February 14, 2012,
the Board mailed its decision to Norris affirming the referee's ruling and providing her
with the following notice of her appeal rights:

"The Board's decision becomes final sixteen (16) days after the above mailing date. If any
aggrieved party desires to appeal, it must be filed in the district court within this period of
time. The procedure for appealing to [the] district court is provided for in K.S.A. 44-
709(i) and K.S.A. 77-601, et seq., as amended. After filing a petition for judicial review
in [the] district court, a copy of the petition should be served on Cecelia Resnik,
Executive Secretary, Employment Security Board of Review."

Instead of filing a petition for judicial review, however, Norris filed with the
Board what the parties agree was "a motion to reconsider its decision." The motion for
reconsideration was mailed to the Board on March 1, 2012, 16 days after the Board
mailed its decision to Norris.

In response to the motion, on March 6, 2012, Resnik sent Norris' counsel a letter
on behalf of the Board, which acknowledged the motion and stated:

"Our records indicate that on February 14, 2012, after the Board reviewed all the
evidence in the case, the[ Board] issued a decision affirming the Referee's decision. The
decision mailed by the Board clearly sets forth that if you are aggrieved by the Board's
decision that you must file an appeal in the district court. The basic guidelines for filing
this appeal are set forth on the decision. The Board does not handle filing the appeal for
you, but you must do so individually or through your own attorney.

"An appeal must be filed within 16 days of the mailing date of the decision of the Board.
You may file your appeal in the same Kansas County in which you live. Failure to file an

4
 appeal within 16 days of that date may cause the court to find you have failed to act in a
timely manner."

On March 21, 2012—36 days after the Board's decision to deny unemployment
compensation and 15 days after Resnik's letter—Norris filed a petition in Shawnee
County District Court seeking "judicial review of the Decision issued on February 14,
2012, . . . and [t]he Board's refusal of a motion to reconsider their Decision, dated March
6, 2012."

The Board moved the district court to dismiss the petition for lack of jurisdiction.
In particular, the Board argued that Norris failed to file her petition for judicial review
within 16 days of February 14, 2012, the date the Board mailed its decision affirming the
referee's ruling. The Board also asserted that Norris' motion for reconsideration did not
toll the time to file the petition because, under K.S.A. 2013 Supp. 44-709(i) of the KESL,
the Board lacks the statutory authority to reconsider its decisions. Finally, the Board
noted that its February 14, 2012, order "clearly informed Norris of her obligation to seek
review in the district court within 16 days of the mailing of the [o]rder."

In response, Norris argued that while the Board did not formally deny her request
for reconsideration, Resnik's letter qualified as an "'action'" of the Board, which extended
the jurisdictional deadline for filing a petition for review by an additional 16 days. Norris
also asserted it was the standard practice of the Board to accept motions for
reconsideration; and whenever the Board denied such a request, it always "did so with an
Order granting a new sixteen (16) day period for higher appeal to the District Court."

The district court dismissed the petition for lack of jurisdiction on September 26,
2012. The district court acknowledged that "[b]oth the KJRA and [KESL] provide
procedures for judicial review of unemployment insurance appeals." Nevertheless, the
district court thought that "[t]he timeframe for Petitions for Review of the Board's

5
decisions is prescribed by [the KESL,]" specifically K.S.A. 2013 Supp. 44-709(i), which
the district court read to require the filing be made within 16 days of the February 14,
2012, mailing of the Board's decision. The district court noted that even if the motion for
reconsideration had tolled the 16-day period, Norris still filed her petition for judicial
review too late. Regarding Norris' claim that the Board should have granted her "16
additional days to appeal following her motion to reconsider," the district court disagreed,
stating Norris "could indefinitely postpone the finality of the Board's decision by filing an
infinite number of motions." Finally, the district court discounted Norris' assertion the
Board had historically granted extensions of time, explaining that "the time for making an
administrative appeal is jurisdictional."

Norris filed a motion to alter or amend the judgment under K.S.A. 2013 Supp. 60-
259(f). In contrast to her previous position, Norris now argued that since Resnick's letter
of March 6, 2012, was not actually a ruling on the motion for reconsideration, she had 90
days under the KJRA to petition for judicial review. See K.S.A. 2013 Supp. 77-631(b).
For its part, the Board asserted the reconsideration provisions of the KJRA did not apply
because the Board had no authority to reconsider its decisions under the KESL. The
Board also suggested Norris was actually seeking reconsideration under the Kansas
Administrative Procedure Act (KAPA), K.S.A. 77-501 et seq., see K.S.A. 2013 Supp. 77-
529(b), which it similarly asserted did not apply to unemployment compensation matters.

On January 3, 2013, the district court issued an order denying Norris' motion to
alter or amend. The district court found that, despite the Board's argument to the contrary,
the filing of a permissive motion for reconsideration could toll the timeframe for filing a
petition for review but it did not entitle a claimant to a new 16-day time period. The
district court, however, declined to consider Norris' new argument pertaining to the
applicability of K.S.A. 2013 Supp. 77-631(b) because "'[m]otions to alter and amend
judgment may properly be denied where the moving party could have, with reasonable
diligence, presented the argument' prior [to the] [c]ourt's decision.'"

6
 Norris filed a timely appeal with this court.

DID THE DISTRICT COURT HAVE JURISDICTION TO CONSIDER
NORRIS' PETITION FOR REVIEW?

On appeal, Norris contends the district court erred when it dismissed her petition
for judicial review for lack of jurisdiction. Norris reprises her argument from the motion
to alter or amend, claiming that although the Board had statutory authority to consider her
motion for reconsideration, it neglected to take any action on that motion rendering her
petition for judicial review timely under the 90-day provision set forth in K.S.A. 2013
Supp. 77-631(b) of the KJRA. The Board, on the other hand, claims that while the district
court improperly interpreted the KESL to authorize reconsideration of its prior decisions,
the district court reached the correct result because Norris' argument relies entirely upon
the procedures set forth in the KAPA, even though the KESL establishes its own
procedures. Of note, the Board does not brief the applicability of the KJRA aside from its
effect on our court's standard of review.

Whether jurisdiction exists is a question of law over which this court exercises
unlimited review. Associated Wholesale Grocers, Inc. v. Americold Corporation, 293
Kan. 633, 637, 270 P.3d 1074 (2011), cert. denied 133 S. Ct. 158 (2012). Moreover,
resolution of this issue requires our court to interpret the statutory language found in the
KESL, KJRA, and KAPA. See Milano's Inc. v. Kansas Dept. of Labor, 296 Kan. 497,
500-01, 293 P.3d 707 (2013) (setting forth a summary of general rules regarding statutory
interpretation). In particular, appellate courts exercise unlimited review over questions
involving the interpretation or construction of a statute, owing "'no significant deference"'
to the Board's interpretation or construction. See Hill v. Kansas Dept. of Labor, 292 Kan.
17, 21, 248 P.3d 1287 (2011); Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ.
Profs, 290 Kan. 446, 456-57, 228 P.3d 403 (2010).

7
 The fundamental question presented on appeal is whether the district court had
jurisdiction to consider Norris' petition for judicial review. A brief historical review of
the KESL and KJRA is necessary to address this question.

The KESL is old administrative law, having its roots in an act of 1937. See K.S.A.
44-701; L. 1937, ch. 255. The KESL sets out certain procedures, which it states are
controlling rather than the "common law or statutory rules of evidence." K.S.A. 2013
Supp. 44-709(g). This is reflective of the period before the 1984 enactments of the KAPA
and the KJRA, which "represented a major step toward uniformity in administrative
procedures and review in Kansas after a long history of substantial diversity in both
areas." Leben, Survey of Kansas Law: Administrative Law, 37 Kan. L. Rev. 679, 680
(1989).

In a case considering the KESL shortly after its enactment, the Kansas Supreme
Court held the "law is complete within itself and provides its own procedure." Smith v.
Robertson, 155 Kan. 706, 711, 128 P.2d 260 (1942). Our Supreme Court repeated this
formulation in later cases, but the most recent reference was in 1973, in City of
Hutchinson v. Hutchinson, Office of State Employment Service, 213 Kan. 399, 403, 517
P.2d 117 (1973), a case the Board relies on in its brief. Research located only one
statement of this formulation by our court in the 1986 case of State ex rel. Wolgast v.
Schurle, 11 Kan. App. 2d 390, 392, 722 P.2d 585 (1986) (citing City of Hutchinson).

In 1986, however, the legislature amended the judicial review provisions of the
KESL to incorporate the KJRA. See L. 1986, ch. 318, sec. 59. It is helpful to first
consider some of the language in place before the 1986 amendment:

"(1) Any decision of the board, in the absence of an action for judicial review of
the decision as provided by this section, shall become final 16 calendar days after the date

8
 of the mailing of the decision. Judicial review of a decision shall be permitted only after a
party claiming to be aggrieved by the decision has exhausted the party's remedies before
the board as provided by this act.
"(2) Within 16 calendar days after the decision of the board has been mailed, the
examiner, or any party aggrieved by the decision, may secure judicial review of the
decision by commencing an action against the board for the review of its decision in the
district court of the county in which the party resides or has the party's principal place of
business or, if the aggrieved party is a nonresident of the state of Kansas, in the district
court of Shawnee county." K.S.A. 1985 Supp. 44-709(i).

The 1986 amendment to the KESL produced the following language, which is still law:

"Any action of the board is subject to review in accordance with the act for
judicial review and civil enforcement of agency actions [now the KJRA]. No bond shall
be required for commencing an action for such review. In the absence of an action for
such review, the action of the board shall become final 16 calendar days after the date of
the mailing of the decision." L. 1986, ch. 318, sec. 59(i).

See K.S.A. 2013 Supp. 44-709(i).

Contrary to the Board's legal position in this case, it is apparent that after the 1986
amendment, the KESL is no longer complete in itself, at least with regard to judicial
review. Instead, the "[a]ctions of the Department of Labor are reviewable under the . . .
(KJRA). See K.S.A. 44-709(i)." Milano's Inc., 296 Kan. at 500. Our court has similarly
recognized this fact, applying the KJRA's 3-day mail rule in a KESL proceeding,
notwithstanding the lack of any such procedural language in the KESL. See Transam
Trucking, Inc. v. Kansas Dept. of Human Resources, 30 Kan. App. 2d 1117, 1122, 54
P.3d 527 (2002).

Turning to the KJRA, it notably frames the time period to file a petition for
judicial review in terms of "reconsideration" and "final order." So, "[i]f reconsideration

9
has not been requested and is not a prerequisite for seeking judicial review, a petition for
judicial review of a final order shall be filed within 30 days after service of the order."
(Emphasis added.) K.S.A. 77-613(b). And "if reconsideration has been requested or is a
prerequisite for seeking judicial review, a petition for judicial review of a final order shall
be filed: (1) Within 30 days after service of the order rendered upon reconsideration . . .
[or] (2) within 30 days after service of an order denying the request for reconsideration."
(Emphasis added.) K.S.A. 77-613(c).

We can define this further beginning with "final order." The KJRA defines
"'[f]inal agency action'" to mean "the whole or part of any agency action other than
nonfinal agency action," K.S.A. 77-607(b)(1), and "agency action" is defined to include
"[t]he whole or a part of . . . an order." K.S.A. 77-602(b)(1). Given that judicial review
generally is provided for a "final agency action," K.S.A. 77-607(a), "final order" and
"final agency action" are synonymous. So, in accordance with the KJRA, judicial review
may be taken from a "final order," or a "final agency action." K.S.A. 77-607(a); K.S.A.
77-613(b) and (c).

With regard to reconsideration, the KJRA does not frame the time period to file in
terms of whether reconsideration is permitted by any provision of law but whether it was
requested by the party seeking judicial review. In this appeal, it is undisputed that Norris
requested reconsideration. This request was consonant with KJRA's language and
procedure.

We acknowledge that no provision of law requires the Board to consider a motion
to reconsider. Nevertheless, the Board points to no law prohibiting it from doing so.
Norris argues the Board has frequently reconsidered decisions in the past, a claim the
Board does not dispute on appeal. Instead, the Board acknowledges that "[w]hy this was
the practice of the Board in the past is not clear."

10
 The KESL provides the Board's procedure "shall be in accordance with rules of
procedure prescribed by the . . . [B]oard . . . for determining the rights of the parties."
K.S.A. 2013 Supp. 44-709(g). Pursuant to this provision, the Department of Labor issued
the following regulation:

"The [B]oard . . . shall within a reasonable time announce its findings of fact and
decision with respect to each appeal. The decision shall be in writing and signed by those
members who concur with the decision. . . . Copies of all decisions of the [B]oard . . .
shall be mailed to the last known address of the parties to the appeal. All decisions shall
inform the parties of their appeal rights." K.A.R. 48-2-5 (2013 Supp.).

Although this regulation does not provide for reconsideration, it also does not prohibit it.

The KAPA does provide for reconsideration of agency actions. See K.S.A. 2013
Supp. 77-529. But the KAPA "applies only to the extent that other statutes expressly
provide that the provisions of this act govern proceedings under those statutes." K.S.A.
2013 Supp. 77-503(a). And the KESL does not expressly provide that the reconsideration
provisions of K.S.A. 2013 Supp. 77-529 shall govern in unemployment compensation
proceedings.

In sum, the KESL does not prohibit reconsideration of its decisions, and it
specifically states that its actions are subject to review in accordance with the KJRA
which clearly provides that a party may request reconsideration. As a result, we are
persuaded there is no evident reason to ignore the KJRA's language which clearly
anticipates and incorporates requests for reconsideration into its procedural scheme.

Next, we consider the time period for filing a motion for reconsideration with the
Board and the effect that the Board's reconsideration decision or failure to act on the
motion has upon the time period to file a petition for review with the district court. Once
again, the language of the 1986 amendment to the KESL guides our analysis:
11
 "Any action of the employment security board of review is subject to review in
accordance with the Kansas judicial review act. No bond shall be required for
commencing an action for such review. . . . In the absence of an action for such review,
the action of [the B]oard shall become final 16 calendar days after the date of the mailing
of the decision." (Emphasis added.) K.S.A. 2013 Supp. 44-709(i).

The Board reads the mention of 16 calendar days in the emphasized sentence as
contradicting and superceding the 30-day time limit to file a petition for judicial review
provided by the KJRA, K.S.A. 77-613(b) and (c). We disagree with that interpretation.

Employing well-established rules of statutory construction, we conclude the
different time periods mentioned in both statutes may be harmonized. First, the language
quoted above begins with the following sentence: "Any action of the . . . [B]oard . . . is
subject to review in accordance with the [KJRA]." K.S.A. 2013 Supp. 44-709(i). The
emphasized sentence above should not be read as contradicting this sentence found one
sentence earlier in the same subparagraph. See Northern Natural Gas Co. v. ONEOK
Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (courts should consider various
portions of an act in pari materia), cert denied 134 S. Ct. 162 (2013).

Second, the emphasized sentence applies only "[i]n the absence of an action for
such review." K.S.A. 2013 Supp. 44-709(i). The legislature would not have intended the
emphasized sentence to contradict the KJRA when it specified that it would apply only in
the absence of a KJRA action. See 296 Kan. at 918 (appellate courts must attempt to
ascertain legislative intent through the statutory language).

Third, the emphasized sentence in K.S.A. 2013 Supp. 44-709(i) merely states the
action of the Board shall become "final," and that term is not defined. To the extent the
emphasized language affects the jurisdiction of the district court under the KJRA, it
would not cut off jurisdiction; a final agency action or order, as we established earlier, is
plainly subject to judicial review by the district court under the KJRA.
12
 We acknowledge the plain language of the KESL before the 1986 amendment did
treat the 16-day period as a time limit on judicial review. But that language was amended,
and "[w]hen the legislature amends a statute, this court must presume it intended to
change the law from how it existed because we assume the legislature does not enact
useless or meaningless legislation." Ft. Hays St. Univ., 290 Kan. at 464. If the 16 days
does not serve the same purpose that it did before the amendment, our challenge is to
identify the purpose intended by the legislature after the 1986 amendment.

We interpret the reference to a 16 day time period in K.S.A. 2013 Supp. 44-709(i)
as a limit on any request for reconsideration. When the legislature amended K.S.A. 44-
709(i) in 1986, it was presumed to have known that the KJRA frames the time to file a
petition for review in terms of reconsideration and that the KAPA (which provides for
reconsideration) does not apply to the KESL. See Cochran v. Kansas Dept. of
Agriculture, 291 Kan. 898, 906, 249 P.3d 434 (2011). Thus, in 1986, the legislature did
two things: It incorporated the 30-day time limit for filing a petition for review from the
KJRA, and it set a 16-day time limit after which the Board's decision would be final—
meaning not subject to reconsideration. While the specific period of 16 days may have
been a holdover from the prior statutory language, we note that it is very similar to the
15-day period for reconsideration established in the KAPA. See K.S.A. 2013 Supp. 77-
529(a)(1).

Given this interpretation, we conclude the legislature intended that a party
adversely affected by a Board decision may directly petition for judicial review under the
KJRA. Alternatively, the party first may seek reconsideration by the Board, but that
request must be made within 16 days of the date of the Board's mailing of the decision.
After 16 days, the Board's decision becomes final and is not subject to reconsideration by
the Board. In our estimation, no other interpretation or construction makes sense of the
relevant language in K.S.A. 2013 Supp. 44-709(i) and the applicable provisions of the
KJRA.

13
 Turning to the facts of this appeal, the Board mailed its decision on February 14,
2012, and the 16 days for reconsideration became 19 days with the addition of the 3-day
mailing period. See K.S.A. 77-613(e); Transam Trucking, Inc., 30 Kan. App. 2d at 1122.
Nineteen days after February 14, 2012, was March 4, 2012, a Sunday. Norris faxed
and/or mailed her request for reconsideration to the Board on March 1, 2012. If faxed, the
filing occurred on March 1; and if mailed, the Board's rules governing appeals to the
Board specify that notices of appeal are "considered filed on the date postmarked."
K.A.R. 48-4-1 (2013 Supp.). At the very least, the Board acknowledged a request dated
March 5, 2012, which would be the first business day after the deadline. No matter how
the time period is calculated, Norris timely moved for reconsideration of the Board's
decision within 16 days of its service by mail.

On March 6, 2012, in response to Norris' motion for reconsideration, Resnik's
letter advised Norris that her recourse was to "file an appeal in the district court." What is
to be made of this letter?

A plain reading of the Resnik letter does not state what, if any, action was taken by
the Board on Norris' motion for reconsideration. That is the position Norris now takes on
appeal. In that situation, the KJRA provides: "If an agency . . . does not act on a petition
for reconsideration within the time prescribed by K.S.A. 77-529, [as amended], a party
may petition for judicial review of the final order at any time within 90 days of service of
such final order." K.S.A. 2013 Supp. 77-631(b). If the Board simply failed to act on
Norris' request within 20 days, as directed by K.S.A. 2013 Supp. 77-529(b), she was
required to petition for judicial review within 90 days of service of the final order. See
K.S.A. 2013 Supp. 77-631(b).

There is another possibility: If the letter was meant to convey a denial of Norris'
motion for reconsideration, K.S.A. 77-613(c)(2) provided her 30 days after service of that
order of denial to file her petition for judicial review.

14
 Given the undisputed fact that Norris filed her petition for review on March 21,
2012, under either scenario, we hold that her petition for judicial review was timely filed
and the district court had jurisdiction to review the matter.

Reversed and remanded.

15