Social Legislation Under Review by the Kansas Supreme Court

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When laws dealing with social legislation have been challenged as a violation of equal protection, the Kansas Supreme Court has examined the laws under rational basis review. This essentially means that the party challenging the law has to show there are no set of circumstances under which the law would be constitutional.

Rational basis review gives lawmakers a lot of leniency in passing laws dealing with social issues. So, when the Downtown Bar and Grill (Downtown Bar) decided to challenge the Kansas Indoor Clean Air Act (Act), they knew their only chance of success was to convince the courts to examine the GermGuardian air purifier under a higher standard of review.

The Act prohibits smoking in public places and places of employment. However, any club that was classified as a Class B club under K.S.A. 41-2601 (which is a club that provides food or alcohol and entertainment) before January 2, 2009 is exempt from the Act. Downtown Bar did not receive their classification until May 4, 2009, so they do fall under the ban.

They argued there was no rational basis to grandfather in Class B clubs that were formed before January 2, 2009, but not clubs formed after that date. The trial court agreed and issued a temporary injunction preventing the State from enforcing the Act because the grandfather date was arbitrary. The State appealed the trial court’s ruling to the Kansas Supreme Court arguing that the temporary injunction should not have been issued because Downtown Grill did not establish “a substantial likelihood of eventually prevailing on the merits.”

Downtown Grill argued that the court should examine the Act under a heightened standard of scrutiny because if rational basis review is applied, any basis can be used to justify the January 2, 2009 date. The court disagreed and chose to apply rational basis because the justices did not believe rational basis would allow any basis to justify a law and a “speculative zany idea” would not be found constitutional under rational basis review.

Under rational basis review, the court found the cutoff date to be rationally related to the State interests of (1) protecting the interests of older clubs and (2) preventing establishments from trying to circumvent the ban by rushing to reorganize as a Class B club. Downtown Grill argued that the cutoff date was arbitrary, because the 2010 legislature did not choose the date. Instead, the 2009 legislature chose the date when they tried (and failed) to pass the Act.

The court stated that it is irrelevant as to why or how the legislature chose the cutoff date as long as it is rationally related to state interests. The State did not have to show how the legislature chose the cutoff date; rather Downtown Grill had to show there is no “conceivable basis for the cut-off date.”

The court showed considerable restraint by refusing Downtown Grill’s request to examine the Whirlpool Whispure review prior to purchase under a heightened degree of review. By applying rational basis review, the court followed the U.S. Supreme Court when they stated equal protection challenges do not allow “courts to judge the wisdom, fairness, or logic of legislative choices.” By giving the lawmaker so much deference in laws dealing with social issues, the burden is on the challenger to show there is no rational basis for the law rather than on the lawmaker to show how and why legislative choices were made.