Kansas Attorney General Opinion 1992-082

ROBERT T. STEPHAN
ATTORNEY GENERAL
June 30, 1992
ATTORNEY GENERAL OPINION NO. 92- 82
The Honorable Kenneth R. King
State Representative, Seventy-Seventh District
Route 1
Leon, Kansas 67074
Re: Schools--Miscellaneous Provisions--Early Retirement
Incentive Programs; Establishment Authorized;
Classification of School Personnel;
Constitutionality of Program
Synopsis: The early retirement incentive program developed by
the board of education for unified school district
no. 490, available only to certified personnel of
the district, does not establish a classification
which would result in a violation of the equal
protection clauses of the United States or Kansas
constitutions. Cited herein: K.S.A. 72-5395; Kan.
Const., Bill of Rights; §S 1, 2; U.S. Const.,
Amend. XIV, § 1.
Dear Representative King:
As representative for the seventy-seventh district, you
request our opinion regarding the constitutionality of an
early retirement incentive program established by unified
school district no. 490 (U.S.D. No. 490).
Pursuant to K.S.A. 72-5395, the board of education of a
unified school district is authorized to:

"[E]stablish an early retirement
incentive program for the benefit of the
employees of the district for the purpose
of reducing, in whole or in part, the
penalty under the federal insurance
contributions act or the Kansas public
employees retirement system, or both, for
retirement prior to the normal retirement
age of 65 years."
The authority to establish such programs is permissive, and
the legislature did not intend to require that such a program
be made available to all employees of a district. See
Minutes, Attachment 1, House Committee on Pensions,
Investments & Benefits, January 24, 1985. Exercising this
authority the board of education for U.S.D. No. 490 has
developed an early retirement incentive program available to
certified personnel of the district. The program is not
available to noncertified personnel of the district.
The United States constitution, Amend. 14, § 1, states:
"All persons born or naturalized in the
United States, and subject to the
jurisdiction thereof, are citizens of the
United States and of the State wherein
they reside. No State shall make or
enforce any law which shall abridge the
privileges or immunities of citizens of
the United States; nor shall any State
deprive any person of life, liberty, or
property, without due process of law; nor
deny to any person within its jurisdiction
the equal protection of the laws."
An equivalent to the equal protection clause of the fourteenth
amendment is contained in the Kansas constitution, bill of
rights, sections 1 and 2. These sections state:
"All men are possessed of equal and
inalienable natural rights, among which
are life, liberty, and the pursuit of
happiness.
"All political power is inherent in the
people, and all free governments are
founded on their authority, and are

instituted for their equal protection and
benefit. . . ."
The protections afforded by sections 1 and 2 being duplicative
of those provided by the fourteenth amendment, the test for
constitutional transgression should also be identical; if a
law does not violate the fourteenth amendment of the United
States constitution, neither does it violate sections 1 and 2
of the bill of rights of the Kansas constitution. Leiker
v. Employment Security Board of Review, 8 Kan.App.2d 379, 387
(1983). See also Ferguson v. Garmon, 643 F.Supp.
335 (D.Kan. 1986); Moody v. Board of Shawnee County
Commissioners, 237 Kan. 67, 74 (1984).
"Our constitution does not make this court
the critic of the legislature, rather,
this court is the guardian of the
constitution and every legislative act
comes before us with a presumption of
constitutionality. A statute will not be
declared unconstitutional unless its
infringement on the superior law of the
constitution is clear, beyond substantial
doubt. State ex rel. Crawford v.
Robinson, 1 Kan. 17, 27 (1862). The
interpretation of constitutional
principles is an important responsibility
for both state and federal courts. In
determining whether a statute is
constitutional, courts must guard against
substituting their views on economic or
social policy for those of the
legislature. Courts are only concerned
with the legislative power to enact
statutes, not the wisdom behind those
enactments. When a legislative act is
appropriately challenged as not conforming
to a constitutional mandate, the function
of the court is to lay the constitutional
provision invoked beside the challenged
statute and decide whether the latter
squares with the former -- that is to say,
the function of the court is merely to
ascertain and declare whether legislation
was enacted in accordance with or in
contravention of the constitution -- and
not to approve or condemn the underlying

policy." Samsel v. Wheeler Transport
Services, Inc., 246 Kan. 336, 348 (1990).
The equal protection guarantee does not take from the states
all power of classification. 16A Am.Jur.2d Constitutional
Law § 746 (1979). Classification is an inherent right and
power of the legislature, and the constitutional guarantee of
equal protection does not dispense with all classification.
Id. It does not prohibit or prevent classification,
provided such classification of persons and things is
reasonable for the purpose of the legislation, is not clearly
arbitrary, is based on proper and justifiable distinctions,
considering the purpose of the law, and is not a subterfuge to
shield one class or unduly to burden another or to oppress
unlawfully in its administration. Id. If the
classification has some reasonable basis, it does not offend
the constitution simply because the classification is not made
with mathematical nicety or because in practice it results in
some inequality. Duckworth v. City of Kansas City, 243
Kan. 386, 390 (1988). See also Schweiker v. Wilson,
450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981).
"Our consideration of the
constitutionality of the statute requires
us to apply the 'minimum rationality' or
'reasonable basis' test. [Citations
omitted.] Under that test, a statute is
'rationally related' to an objective if
the statute produces effects that advance,
rather than retard or have no bearing on,
the attainment of the objective. So long
as the regulation is positively related to
a conceivable legitimate purpose, it
passes scrutiny; it is for the
legislature, not the courts, to balance
the advantages and disadvantages."
Duckworth, supra, 243 Kan. at 390.
The board of education for U.S.D. No. 490 implemented an early
retirement incentive program "in order to facilitate the
voluntary retirement of employees of the school district who
may find it necessary or desirable to retire from employment
with the district prior to normal retirement age." Early
Retirement Policy, Teacher Handbook, Unified School District
No. 490 (1988). If the classifications established by U.S.D.
No. 490 facilitate the voluntary retirement of employees of
the school district the classifications will be upheld, and a
violation of the equal protection clauses of the United States

and Kansas constitutions will not have occurred. The
classifications are subject to judicial revision only to the
extent of seeing that the classifications are founded on real
distinctions between the subjects classified, and not on
artificial or irrelevant ones used for the purpose of evading
the constitutional prohibition. 16A Am.Jur.2d, supra, S
748.
"Legislative classifications, however, are
presumed to be constitutional, and the
burden of showing a statute to be
unconstitutional is on the challenging
party, not [emphasis in original] on the
party defending the statute: 'those
challenging the legislative judgment must
convince the court that the legislative
facts on which the classification is
apparently based could not reasonably be
conceived to be true by the governmental
decision maker. Vance v. Bradley,
440 U.S. 93, 111, 99 S.Ct. 939, 949, 59
L.Ed.2d 171 (1979). In a case such as
this, the plaintiff can carry this burden
by submitting evidence to show that the
asserted grounds for the legislative
classification lack any reasonable support
in fact, but this burden is nonetheless a
considerable one. United States v.
Carolene Products Co., 304 U.S. 144,
154, 58 S.Ct. 778, 784, 82 L.Ed. 1234
(1938)." New York State Club Ass'n v.
City of New York, 487 U.S. 1117, 108
S.Ct. 2225, 2236, 101 L.Ed.2d 1 (1988).
The classification established by U.S.D. No. 490 in its early
retirement incentive program is based on readily identifiable
distinctions between the parties. The classification permits
employees of the district to pursue early retirement while
sustaining minimal penalty, the purpose of the program. It is
not a function of the court to determine the wisdom of the
classification. The early retirement incentive program
developed by U.S.D. No. 490, available only to certified
personnel of the district, does not establish a classification

which would result in a violation of the equal protection
clauses of the United States or Kansas constitutions.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Richard D. Smith
Assistant Attorney General
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