Challenging and Defending Agency Actions in Kansas

JurisdictionKansas,United States
CitationVol. 64 No. 06 Pg. 22
Pages22
Publication year1995
Kansas Bar Journals
Volume 64.

64 J. Kan. Bar Assn. June/July, 22 (1995). CHALLENGING AND DEFENDING AGENCY ACTIONS IN KANSAS

Journal of the Kansas Bar Association
June/July, 1995

CHALLENGING AND DEFENDING AGENCY ACTIONS IN KANSAS

Steve Leben

Copyright (c) 1995 by the Kansas Bar Association; Steve Leben

More than a decade has now passed since adoption of the Kansas Administrative Procedure Act [FN1] (KAPA) and the Kansas Judicial Review Act (KJRA). [FN2] During this time, there has been a steady expansion in the extent of state agency interaction in the daily affairs of everyone. [FN3] Further, it would appear that the increase in involvement and power of state agencies in the lives of average citizens will continue for some time to come. [FN4] Accordingly, practitioners daily meet clients who seek protection from potential agency action or who seek to challenge actions already taken by administrative agencies. Lawyers representing state agencies see increasing challenges to agency actions.

A significant body of case law has now developed in Kansas under KJRA and, to a lesser extent, under KAPA. This article attempts to provide a practical discussion [FN5] of some of the issues involved in challenging or defending administrative agency actions in Kansas, paying particular attention to the case law development under KAPA and KJRA. [FN6]

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I. Kansas Administrative Procedure Act (KAPA)

KAPA sets out uniform procedures applicable to most state agency proceedings. It creates four types of hearings: (1) formal adjudicative hearings, [FN7] (2) conference hearings, [FN8] (3) emergency hearings [FN9] and (4) summary hearings. [FN10] These proceedings are explained in the statute and in administrative regulations of the various agencies, [FN11] have been described elsewhere [FN12] and are not reviewed here. With respect to KAPA, this article focuses on the availability of discovery and significant case law developments.

A. Availability of Discovery During Agency Proceeding

One issue that has been controversial under KAPA is the extent to which discovery is available during an administrative proceeding. KAPA's discovery provisions have been amended twice since its initial enactment; the second amendment took place before the previous amendment had even taken effect. [FN13] The current provision states:

Discovery shall be permitted to the extent allowed by the presiding officer or as agreed to by the parties. Requests for discovery shall be made in writing to the presiding officer and a copy of each request for discovery shall be served on the party or person against whom discovery is sought. The presiding officer may specify the times during which the parties may pursue discovery and respond to discovery requests. The presiding officer may issue subpoenas, discovery orders and protective orders in accordance with the rules of civil procedure. [FN14] As amended, KAPA does not provide an explicit right to discovery, conditioning discovery upon the approval of the presiding officer. However, a party may still have an implicit right to issuance of subpoenas and, perhaps, other discovery. [FN15] At least when an agency has sought discovery, the courts have liberally interpreted statutory provisions providing for discovery. [FN16] A new case suggests that a more relaxed relevance standard applies in investigative administrative proceedings than in adjudicatory ones. [FN17] The court states that a subpoena duces tecum in an adjudicatory proceeding "is subject to K.S.A. 60-245(b), and it must be relevant and not unreasonable or oppressive." [FN18] Under most circumstances, relevancy is to be interpreted fairly broadly. [FN19]

B. Enforcement of Discovery During Agency Proceeding

KJRA provides the mechanism for enforcement of discovery during an agency administrative proceeding. K.S.A. 77-624 allows any party to an agency hearing to file suit under KJRA to "seek enforcement of a subpoena, discovery order or protective order...." The petition must name as defendants each person against whom discovery is sought to be enforced. Such a suit may also offer a mechanism for a private party to use in resolving a discovery

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dispute with an agency. If the presiding officer refuses to allow discovery that a private party considers absolutely vital, suit could be brought against the agency, seeking to obtain and enforce a subpoena (or subpoena duces tecum). However, the better view appears to be that K.S.A. 77-624 authorizes court proceedings only to enforce discovery that has been ordered by the presiding officer; otherwise, K.S.A. 77-624 would itself become a vehicle for interlocutory appeals of denials by the hearing officer of discovery requests, something clearly not intended under the KJRA. [FN20]

C. Rulemaking vs. Adjudication for Policy Pronouncements

In what may be a significant decision, the Kansas Supreme Court has held that an agency may not enforce previously adopted, written policies of general application unless it has followed the rulemaking procedures set out by statute. In Bruns v. Kansas State Board of Technical Professions, [FN21] the court noted that rules and regulations must be filed and published as required by law to be effective. [FN22] If a policy of general application is adopted but not filed and published, the court held that it is of no effect. [FN23] On the other hand, duly adopted regulations have the force and effect of law. [FN24] In Bruns, the Kansas State Board of Technical Professions had refused an application for reciprocal licensure based solely upon a pre-existing, written policy that had not been filed under statutory procedures. [FN25] The matter was remanded to the board to consider the application for licensure on its merits. [FN26]

Ordinarily, state administrative agencies have the discretion to establish standards of conduct under statutes within their authority either through rulemaking or adjudication. [FN27] However, when the agency chooses to proceed by rule, it must comply with statutory requirements. [FN28] Bruns is consistent with these generally accepted rules and with the Kansas statutes. In other states, there has been a trend toward requiring that policy pronouncements be made by rule when possible, [FN29] although most states continue to give the agency discretion to choose either rulemaking or adjudication. [FN30] Some of the language in Bruns could be read to suggest that statutory standards of general applicability must be established by rule, although the holding in Bruns is more limited, since the board there was trying to apply a pre-existing policy, not announcing one, in the adjudicatory proceeding. It will remain to later cases to see how broadly Bruns will be interpreted, although arguments may often be available that the adjudicatory action being taken by an agency constitutes the forbidden promulgation of a "policy...of general application" without benefit of rulemaking procedures. An argument may also be made that changes in agency policy must be made by rulemaking. [FN31] At present, Kansas appears to be representative of most states in this area: an agency may establish standards of conduct through either rulemaking or adjudication, but it may not adopt regulations except through the statutory procedures and it may not apply rules previously

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adopted without benefit of the statutory procedures in a contested proceeding. [FN32]

D. Emergency Proceedings Are Limited

When emergency proceedings are employed under KAPA, the agency must proceed as quickly as feasible to complete any proceedings that would be required if the matter did not justify the use of emergency proceedings. [FN33] In Corder v. Kansas Board of Healing Arts, [FN34] agency action suspending a doctor's license without an initial hearing and then continuing the suspension indefinitely because he refused to submit to a mental examination was held improper. The agency was still required to give the doctor a hearing on the merits on the temporary order "as quickly as feasible." This had to be done before requiring him to submit to a mental examination. The Kansas Supreme Court, reading the specific statutes concerning licensing of health professionals in conjunction with KAPA, held that the mental exam could not be ordered until formal proceedings were begun, which would give the licensee a forum to address all issues on proper notice.

E. Many KAPA Provisions Are Directory, Not Mandatory

Although many KAPA provisions use "shall" language, they are often held to be directory, not mandatory, in nature. [FN35] Thus, requirements that an agency head personally sign an order granting reconsideration [FN36] and various time limits have been held to be directory. [FN37]

II. Kansas Judicial Review Act (KJRA)

A. Scope of Review

K.S.A. 77-621 sets forth the scope of review to be applied in KJRA actions, specifying the conditions under which agency action may be invalidated and noting that the harmless error rule must be applied in reviewing any agency action. [FN38]

Some preliminary matters are appropriately addressed before discussing the scope of review in detail. First, because review of agency decisions is generally available only as provided by statute, [FN39] it follows that the review is limited by the authority provided in the statute. Second, judgments about the extent and intensity of review should be based upon consideration of the relative abilities of agencies and the courts. [FN40] Third, review may be described both with respect to the extent of review and the intensity of review. [FN41] The extent of review refers to the issues that may be subject to review by the court; the intensity of review refers to the degree to which the court is free to

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substitute its judgment for that of the agency on a given issue.

Simplified, K.S.A. 77-621 provides that an agency...

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