Norris v. Kan. Emp't Sec. Bd. of Review, 109,428.

• Decision Date: 21 March 2014
• Docket Number: No. 109,428.,109,428.
• Citation: 321 P.3d 28,50 Kan.App.2d 69
• Parties: Patricia NORRIS, Appellant, v. KANSAS EMPLOYMENT SECURITY BOARD OF REVIEW, Appellee.
• Court: Kansas Court of Appeals

50 Kan.App.2d 69

321 P.3d 28

Patricia NORRIS, Appellant,

v.KANSAS EMPLOYMENT SECURITY BOARD OF REVIEW, Appellee.

No. 109,428.

Court of Appeals of Kansas.

March 21, 2014.

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 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).

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.

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] 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 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 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...