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Nickels v. Board of Education of Unified School Dist. 453

January 11, 2008

LESLIE A. NICKELS, APPELLEE,
v.
BOARD OF EDUCATION OF UNIFIED SCHOOL DISTRICT 453, APPELLANT.



Appeal from Leavenworth District Court; DAVID J. KING, judge.

SYLLABUS BY THE COURT

1. Pursuant to K.S.A. 77-623, petitions for judicial review of an agency action are reviewable by the appellate court as in other civil cases. Generally, in civil cases, K.S.A. 60-2102(a)(4) permits a party to appeal a final decision in any action.

2. Under the facts of this case, the district court's decision ordering a school board to hold a teacher due process hearing pursuant to K.S.A. 72-5446 was not a final, appealable decision, and the school board's appeal must be dismissed as interlocutory.

The opinion of the court was delivered by: Caplinger, J.

Appeal dismissed.

Before BUSER, P.J., GREEN and CAPLINGER, JJ.

The Board of Education of Unified School District 453 (Board) appeals the district court's decision remanding this case to the Board for a due process hearing pursuant to K.S.A. 72-5446. We hold that because the due process hearing has not yet been conducted, the district court's order is not a final, appealable order and the appeal must be dismissed as interlocutory.

Factual and Procedural Background

Leslie A. Nickels had been a teacher for Unified School District 453 for 3 years when she was notified by the Board on May 1, 2006, that her contract would not be renewed for the following school year. Nickels filed a notice of hearing with the Board pursuant to K.S.A. 72-5446. In the notice, she alleged her constitutional right to employment was abridged by the non-renewal of her teaching contract. Further, she asserted her contract was not renewed because of her age.

In a letter dated May 12, 2006, the Board denied Nickels' request for hearing, stating that the hearing procedures provided by K.S.A. 72-5446 were not applicable to the circumstances alleged in Nickels' notice. The Board noted that the statute requires that Nickels provide notice that her contract had "been non-renewed by reason of her having exercised a Constitutional right," but Nickels claimed only that her constitutional right to employment had been abridged. The Board further asserted that it was not aware of a constitutional right to employment, and Nickels' notice alleged only violations of federal and state statutes.

Nickels appealed to the district court, claiming, "The only issue to be determined is [Nickels'] right to a due process hearing pursuant to K.S.A. 72-5446 as a result of the abridgment of her constitutional right to not be discriminated against in her employment on the basis of her age." The district court determined Nickels' allegations fall within the statute, and therefore she was entitled to a due process hearing as provided by K.S.A. 72-5446. The Board appeals, asking this court to conclude the district court erred in finding Nickels is entitled to a hearing.

Discussion

Prior to the filing of appeal briefs, the motions panel of this court issued an order to the parties to show cause why this appeal should not be dismissed as interlocutory. Both parties filed written responses and subsequently filed briefs addressing the merits issues. The court retained the appeal, and ...


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