Excerpts from K.S.A. Chapter 60 Civil Procedure
Article 53–Exercise of 1st Amendment Rights
Current through end of 2018 legislative session
60-5301 Citation of act
60-5303 Exercise of religion; burden of proof; remedies
60-5304 Exercise of religion; compelling governmental interest.
60-5305 Construction of act
60-5311 Exercise of religion by religious student associations; definitions
60-5312 Same; prohibition on certain actions by postsecondary educational institutions
60-5313 Same; cause of action
60-5320 Public speech protection act
60-5321 Traditional tribal regalia and objects of cultural significance, wearing of
60-5301. Citation of act.
K.S.A. 2018 Supp. 60-5301 through 60-5305, and amendments thereto, shall be known and may be cited as the Kansas preservation of religious freedom act.
History: L. 2013, ch. 47, § 5; July 1.
As used in the Kansas preservation of religious freedom act:
(a) "Burden" means any government action that directly or indirectly constrains, inhibits, curtails or denies the exercise of religion by any person or compels any action contrary to a person's exercise of religion, and includes, but is not limited to, withholding benefits, assessing criminal, civil or administrative penalties, or exclusion from government programs or access to government facilities.
(b) "Compelling governmental interest" includes, but is not limited to, protecting the welfare of a child from abuse and neglect as defined by state law.
(c) "Exercise of religion" means the practice or observance of religion under section 7 of the bill of rights of the constitution of the state of Kansas and the free exercise clause of the first amendment to the constitution of the United States and includes the right to act or refuse to act in a manner substantially motivated by a sincerely-held religious tenet or belief, whether or not the exercise is compulsory or a central part or requirement of the person's religious tenets or beliefs.
(d) "Fraudulent claim" means a claim that is dishonest in fact or that is made principally for a patently improper purpose, such as to harass the opposing party.
(e) "Government" includes the executive, legislative and judicial branches and any and all agencies, boards, commissions, departments, districts, authorities or other entities, subdivisions or parts whatsoever of state and local government as well as any person acting under color of law.
(f) "Person" means any legal person or entity under the laws of the state of Kansas and the laws of the United States.
History: L. 2013, ch. 47, § 1; July 1.
60-5303. Exercise of religion; burden of proof; remedies.
(a) Government shall not substantially burden a person's civil right to exercise of religion even if the burden results from a rule of general applicability, unless such government demonstrates, by clear and convincing evidence, that application of the burden to the person:
(1) Is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(b) A person whose exercise of religion has been burdened, or is substantially likely to be burdened, in violation of this act, may assert such violation as a claim or defense in a judicial proceeding. A court may grant appropriate relief as may be necessary including:
(1) Injunctive relief;
(2) protective order;
(3) writ of mandamus or prohibition;
(4) declaratory relief;
(5) actual damages; or
(6) costs and attorney fees determined by the court.
(c) Any person found by a court of competent jurisdiction to have abused the protection of this act by making a fraudulent claim may be enjoined from filing further claims under this act without leave of court.
History: L. 2013, ch. 47, § 2; July 1.
60-5304. Exercise of religion; compelling governmental interest.
In determining whether a compelling governmental interest is sufficient to justify a substantial burden on a person's exercise of religion pursuant to K.S.A. 2018 Supp. 60-5303, and amendments thereto, only those interests of the highest order and not otherwise served can overbalance the fundamental right to the exercise of religion preserved by this act. In order to prevail under the standard established pursuant to subsection (a) of K.S.A. 2018 Supp. 60-5303, and amendments thereto, the government shall demonstrate that such standard is satisfied through application of the asserted violation of this act to the particular claimant whose sincere exercise of religion has been burdened. The religious liberty interest protected by this act is an independent liberty that occupies a preferred position, and no encroachments upon this liberty shall be permitted, whether direct or indirect, unless required by clear and compelling governmental interests of the highest order.
History: L. 2013, ch. 47, § 3; July 1.
60-5305. Construction of act.
(a) Nothing in this act shall be construed to:
(1) Impair the fundamental right of every parent to control the care and custody of such parent's minor children, including, but not limited to, control over education, discipline, religious and moral instruction, health, medical care, welfare, place of habitation, counseling and psychological and emotional well-being of such minor children as set forth in the laws and constitution of the state of Kansas and of the United States;
(2) authorize any relationship, marital or otherwise, that would violate section 16 of article 15 of the constitution of the state of Kansas;
(3) authorize the application or enforcement, in the courts of the state of Kansas, of any law, rule, code or legal system other than the laws of the state of Kansas and of the United States;
(4) limit any religious organization from receiving any funding or other assistance from a government, or of any person to receive government funding for a religious activity to the extent permitted by the laws and constitution of the state of Kansas and of the United States; or
(5) protect actions or decisions to end the life of any adult or child, born or unborn.
(b) Except as provided in subsection (c), this act applies to all government action including, but not limited to, all state and local laws, ordinances, rules, regulations and policies and to their implementation, whether enacted or adopted before, on or after the effective date of this act.
(c) This act shall not apply to penological rules and regulations, conditions or policies established by a jail, correctional institution, juvenile correctional facility or juvenile detention facility or an entity supervising offenders in the community that are reasonably related to the safety and security of incarcerated persons, staff, visitors, supervised offenders or the public, or to maintenance of good order and discipline in any jail, correctional institution, juvenile correctional facility or juvenile detention facility.
History: L. 2013, ch. 47, § 4; July 1.
60-5311. Exercise of religion by religious student associations; definitions.
As used in K.S.A. 2018 Supp. 60-5311 through 60-5313, and amendments thereto:
(a) "Benefit" means the following:
(3) the use of facilities of the postsecondary educational institution for meetings or speaking purposes;
(4) the use of channels of communication of the postsecondary educational institution; and
(5) funding sources that are otherwise available to other student associations in the postsecondary educational institution.
(b) "Postsecondary educational institution" shall have the same meaning as that term is defined in K.S.A. 74-3201b, and amendments thereto.
(c) "Student" means any person who is enrolled on a full-time or part-time basis in a postsecondary educational institution.
(d) "Religious student association" means an association of students organized around shared religious beliefs.
History: L. 2016, ch. 10, § 1; July 1.
60-5312. Same; prohibition on certain actions by postsecondary educational institutions.
No postsecondary educational institution may take any action or enforce any policy that would deny a religious student association any benefit available to any other student association, or discriminate against a religious student association with respect to such benefit, based on such association's requirement that the leaders or members of such association:
(a) Adhere to the association's sincerely held religious beliefs;
(b) comply with the association's sincerely held religious beliefs;
(c) comply with the association's sincere religious standards of conduct; or
(d) be committed to furthering the association's religious missions, as such religious beliefs, observance requirements, standards of conduct or missions are defined by the religious student association, or the religion on which the association is based.
History: L. 2016, ch. 10, § 2; July 1.
60-5313. Same; cause of action.
Any student or religious student association aggrieved by a violation of K.S.A. 2018 Supp. 60-5312, and amendments thereto, may bring a cause of action against the postsecondary educational institution for such violation and seek appropriate relief, including, but not limited to, monetary damages. Any student or religious student association aggrieved by a violation of K.S.A. 2018 Supp. 60-5312, and amendments thereto, also may assert such violation as a defense or counterclaim in any civil or administrative proceedings brought against such student or religious student association.
History: L. 2016, ch. 10, § 3; July 1.
60-5320. Public speech protection act.
(a) This section shall be known and may be cited as the public speech protection act.
(b) The purpose of the public speech protection act is to encourage and safeguard the constitutional rights of a person to petition, and speak freely and associate freely, in connection with a public issue or issue of public interest to the maximum extent permitted by law while, at the same time, protecting the rights of a person to file meritorious lawsuits for demonstrable injury.
(c) As used in the public speech protection act:
(1) "Claim" means any lawsuit, cause of action, claim, cross-claim, counterclaim or other judicial pleading or filing requesting relief.
(2) "Communication" means the making or submitting of a statement or document in any form or medium, including oral, visual, written or electronic.
(3) "Exercise of the right of association" means a communication between individuals who join together to collectively express, promote, pursue or defend common interests.
(4) "Exercise of the right of free speech" means a communication made in connection with a public issue or issue of public interest.
(5) "Exercise of the right to petition" means any of the following:
(A) A communication in or pertaining to:
(i) A judicial proceeding;
(ii) an official proceeding, other than a judicial proceeding, to administer the law;
(iii) an executive or other proceeding before a department of the state, federal government, or other political subdivision of the state;
(iv) a legislative proceeding, including a proceeding of a legislative committee;
(v) a proceeding before an entity that requires by rule that public notice be given before proceedings of such entity;
(vi) a proceeding in or before a managing board of an educational institution supported directly or indirectly from public revenue;
(vii) a proceeding of the governing body of any political subdivision of this state;
(viii) a report of or debate and statements made in a proceeding described by subsection (c)(5)(A)(iii), (iv), (v), (vi) or (vii); or
(ix) a public meeting dealing with a public purpose, including statements and discussions at the meeting or other public issues or issues of public interest occurring at the meeting;
(B) a communication in connection with an issue under consideration or review by a legislative, executive, judicial or other governmental or official proceeding;
(C) a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial or other governmental or official proceeding;
(D) a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial or other governmental or official proceeding; and
(E) any other communication or conduct that falls within the protection of the right to petition the government under the constitution of the United States or the constitution of the state of Kansas.
(6) "Governmental proceeding" means a proceeding, other than a judicial proceeding, by an officer, official or body or political subdivision of this state, including a board or commission, or by an officer, official or body of the federal government.
(7) "Public issue or issue of public interest" includes an issue related to:
(A) Health or safety;
(B) environmental, economic or community well-being;
(C) the government;
(D) a public official or public figure; or
(E) a good, product or service in the marketplace.
(8) "Moving party" means any person on whose behalf the motion to strike is filed seeking to strike a claim.
(9) "Official proceeding" means any type of administrative, executive, legislative or judicial proceeding that may be conducted before a public servant.
(10) "Public servant" means a person elected, selected, appointed, employed or otherwise designated as one of the following, even if the person has not yet qualified for office or assumed the person's duties:
(A) An officer, employee or agent of government;
(B) a juror;
(C) an arbitrator, mediator or other person who is authorized by law or private written agreement to hear or determine a cause or controversy;
(D) an attorney or notary public when participating in the performance of a governmental function; or
(E) a person who is performing a governmental function under a claim of right but is not legally qualified to do so.
(d) A party may bring a motion to strike the claim if a claim is based on, relates to or is in response to a party's exercise of the right of free speech, right to petition or right of association. A party bringing the motion to strike has the initial burden of making a prima facie case showing the claim against which the motion is based concerns a party's exercise of the right of free speech, right to petition or right of association. If the moving party meets the burden, the burden shifts to the responding party to establish a likelihood of prevailing on the claim by presenting substantial competent evidence to support a prima facie case. If the responding party meets the burden, the court shall deny the motion. In making its determination, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. If the court determines the responding party established a likelihood of prevailing on the claim: (1) The fact that the court made that determination and the substance of the determination may not be admitted into evidence later in the case; and (2) the determination does not affect the burden or standard of proof in the proceeding. The motion to strike made under this subsection may be filed within 60 days of the service of the most recent complaint or, in the court's discretion, at any later time upon terms it deems proper. A hearing shall be held on the motion not more than 30 days after the service of the motion.
(e) (1) On a motion by a party or on the court's own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion.
(2) Except as provided by subsection (e)(1), all discovery, motions or other pending hearings shall be stayed upon the filing of the motion to strike. The stay of discovery shall remain in effect until the entry of the order ruling on the motion except that the court, on motion and for good cause shown, may order that specified discovery, motions or other pending hearings be conducted.
(f) The movant in a motion to strike has the right to: (1) Petition for a writ of mandamus if the trial court fails to rule on the motion in an expedited fashion; or (2) file an interlocutory appeal from a trial court order denying the motion to strike, if notice of appeal is filed within 14 days after entry of such order. However, under subsections (f)(1) and (2), further proceedings in the trial court shall be stayed pending determination of the appeal.
(g) The court shall award the defending party, upon a determination that the moving party has prevailed on its motion to strike, without regard to any limits under state law: (1) Costs of litigation and reasonable attorney fees; and (2) such additional relief, including sanctions upon the responding party and its attorneys and law firms, as the court determines necessary to deter repetition of the conduct by others similarly situated. If the court finds that the motion to strike is frivolous or solely intended to cause delay, the court shall award to the responding party reasonable attorney fees and costs related to the motion.
(h) This section does not apply to:
(1) An enforcement action that is brought in the name of this state or a political subdivision of this state by the attorney general or a district or county attorney;
(2) a claim brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services or an insurance product, insurance services or a commercial transaction in which the intended audience is an actual or potential buyer or customer, except as provided in subsection (i); or
(3) a claim brought under the Kansas insurance code or arising out of an insurance contract.
(i) Subsection (h)(2) shall not apply to any action against any person or entity based upon the creation, dissemination, exhibition, advertisement or other similar promotion of any dramatic, literary, musical, political or artistic work, including, but not limited to, a motion picture or television program, or an article published in a newspaper or magazine of general circulation.
(j) In any case filed by a government contractor that is found by a court to be in violation of this section, the court shall provide for its ruling to be sent to the head of the relevant governmental entity doing business with the contractor.
(k) The provisions of the public speech protection act shall be applied and construed liberally to effectuate its general purposes. If any provision of the public speech protection act or its application is held invalid, the invalidity does not affect other provisions or applications that can be given effect without the invalid provision or application.
History: L. 2016, ch. 58, § 1; July 1.
60-5321. Traditional tribal regalia and objects of cultural significance, wearing of.
(a) The legislature hereby declares that the purpose of this act is to help further the state's recognition of the distinct and unique cultural heritage of the Native Americans and the state's commitment to preserving the Native Americans' cultural integrity.
(b) No state agency or municipality shall prohibit an individual from wearing traditional tribal regalia or objects of cultural significance at a public event.
(c) For purposes of this section:
(1) "Municipality" means any county, township, city, school district or other political or taxing subdivision of the state, or any agency, authority, institution or other instrumentality thereof.
(2) "Public event" means an event held or sponsored by a state agency or municipality, including, but not limited to, an award ceremony, a graduation ceremony or a meeting of a governing body.
(3) "State agency" means the state of Kansas and any department or branch of state government, or any agency, authority, institution or other instrumentality thereof.
(d) On the effective date of this act, the secretary of state shall send a copy of this act to each tribal government located on the four Kansas reservations.
History: L. 2018, ch. 17, § 1; Apr. 5.