76 J. Kan. Bar Assn. 2, 21 (2007). Procedures Under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-106 et seq.

• Author: By Martha J. Coffman

Kansas Bar Journals

Volume 76.

76 J. Kan. Bar Assn. 2, 21 (2007).

Procedures Under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-106 et seq

Kansas Bar JournalVolume 76, February 200776 J. Kan. Bar Ass'n 2, 21 (2007)Procedures Under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-106 et seq.By Martha J. CoffmanI. Introduction

More than 20 years ago, the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA or Act)1 established uniform procedures for challenging state agency decisions in Kansas. The KJRA provides the exclusive means to obtain judicial review of state agency action. Both the KJRA and the Kansas Administrative Procedure Act (KAPA)2 were enacted by the Kansas Legislature in 1984. Prior articles3 appearing in this Journal have discussed these Acts. This article will focus on issues that Kansas appellate courts have recently addressed involving the KJRA. The article will review the courts' interpretation of KJRA procedures for obtaining judicial review of agency action and discuss the scope of issues reviewed under the KJRA. A subsequent article will discuss standards of review that courts apply in evaluating agency action.

2. What is the Scope of Agency Action Reviewed Under the KJRA?

   The Kansas Judicial Council urged the Kansas Legislature to adopt the KJRA as a comprehensive statewide judicial review act for all state and local agencies. The Legislature enacted more limited provisions.4 The KJRA specifies which agency action is subject to review under its provisions. Before filing a petition pursuant to the KJRA, a litigant should consider whether the particular agency action being challenged is covered by the KJRA. For example, certain agency action is specifically excluded from statutory review under the KJRA.5 Also, the KJRA does not apply if a party is filing a civil tort action or a civil rights claim against an agency.6 However, if the action taken by the agency comes within the conduct covered by the KJRA, then the KJRA states that it is the exclusive means for a party to obtain judicial review of agency action.7 A litigant should keep in mind that if the KJRA applies but a party fails to follow its requirements, the court may find waiver of jurisdiction under the KJRA and dismiss the petition.8

   Statutory provisions define the scope of agency action that is subject to review under the KJRA. The KJRA is the exclusive remedy for review and enforcement of action taken by a state agency unless decisions by that agency are specifically exempted from the KJRA's coverage.9 The Act defines its limited application. The KJRA applies to action taken by an agency.10 An agency is defined as a "state agency."11 The Act defines state agency as an "officer, department, bureau, division, board, authority, agency, commission, or institution" of the state that is "authorized by law to administer, enforce, or interpret any law of this state"; the definition excludes "any political or taxing subdivision of the state" as well as the judicial and legislative branches of state government.12

   The Legislature rejected the Judicial Council's recommendation that the KJRA apply to local, as well as state, agencies.13 As a result, decisions by political subdivisions of the state are not subject to review under the Act.14 Unified school districts are not state agencies under this definition; therefore, the KJRA does not apply to an appeal from a decision by a school district sitting as a quasi-judicial body.15 Because the definition of state agency specifically excludes political or taxing subdivisions of the state or the judicial or legislative branches of state government,16 the KJRA does not apply to an appeal challenging municipal and county zoning actions.17

   Agency action is defined as (1) the whole or part of a rule and regulation or an order issued by an agency, (2) the failure of an agency to issue a rule and regulation or an order, or (3) an agency's performance of or failure to perform a duty, function, or activity.18 A rule and regulation is defined as "a standard, statement of policy or general order" that applies generally and has the effect of law, which is issued or adopted to implement or interpret legislation the agency enforces or administers or to govern the organization of the agency's procedures.19 "Order" is defined as "an agency action of particular applicability that determines the legal rights, duties, privileges, immunities or other legal interests of one or more specific persons."20 Citing this definition of order, as well as the one contained in KAPA,21 the Kansas Court of Appeals concluded that an award of workers' compensation by an administrative law judge constituted an order that determined the rights of the parties under the Kansas Workers' Compensation Act.22

   While the definition of "agency action" appears straightforward, the scope of conduct covered is not always clear and may create problems for a practitioner. If an agency takes affirmative action - to issue a rule and regulation; to issue an order; or to perform a duty, function, or activity - a party and counsel should receive notice that agency action has occurred and know what deadlines need to be met. But if an agency does not take action - for example, if an agency fails to issue a rule and regulation; fails to issue an order; or fails to perform a duty, function, or activity when it had an obligation or the discretion to do so - a practitioner may have problems determining how and when the provisions of the KJRA are triggered.23

   As discussed later in this article, the KJRA specifically requires an agency to serve parties with notice of agency action, parties to exhaust administrative remedies, and parties to serve an agency with notice of the filing of a petition for judicial review. The Kansas appellate courts have strictly construed these provisions of the KJRA. If an agency takes affirmative steps to make a decision, the deadlines are triggered and the KJRA works well. But if the agency fails to act when it should or could, the goal of the KJRA falters.24 What was intended to provide a uniform procedure for challenging decisions by state agencies may become a technical trap for the unwary. When this happens, the requirements of the KJRA may remind practitioners of a time before revision of the rules of civil procedure in Kansas, when procedural technicalities were used to avoid judicial review of claims on the merits.25

   The KJRA specifies that certain actions taken by state agencies are excluded from review under the statute. These provisions include (1) actions taken by the Kansas Parole Board concerning inmates or persons under parole or conditional release supervision; (2) custody decisions by the secretary of corrections; and (3) pardon, commutation of sentence, clemency, and extradition decisions.26 The Act also excludes from its coverage decisions involving election laws and actions concerning military or naval affairs not relating to armories.27

   Agency decisions regarding the Kansas Open Records Act (KORA) and the Kansas Open Meetings Act are also specifically excluded from the KJRA.28 Because the KJRA does not apply to the KORA, an agency's interpretation of the KORA is not entitled to deference by a district court.29 Instead of giving deference to the agency's decision, the trial court must apply a de novo review standard when considering a KORA request.30

   A practitioner should check statutory provisions that are the basis of the claim being pursued to determine whether alternative procedures might be available to a claimant. For example, the Kansas Court of Appeals has held that a claim for back wages brought pursuant to the Kansas Wage Payment Act may be initiated either with the secretary of human resources or in a court of competent jurisdiction.31 Workers' compensation proceedings are intended to determine an employee's right to compensation and who is liable; therefore, workers' compensation insurance carriers may proceed in district court to litigate among themselves their relative liability for a workers' compensation award.32

   If action by an agency falls outside the scope of the KJRA, the practitioner may look to alternative remedies. Before adoption of the KJRA, the Kansas Supreme Court noted that if no statutory basis exists for appeal of an agency or board decision, then equitable remedies, such as quo warranto, mandamus, or injunction, may be available in district court to provide relief from illegal, arbitrary, or unreasonable acts of public officials and boards.33 The Court of Appeals, also before adoption of the KJRA, stated equitable relief through an independent action in district court may be available for a party to challenge a decision by an agency or board if the agency's action did not constitute an "order or decision" subject to "review" under statutory provisions.34 The court held that any challenge to an oral ruling by an agency became moot when the agency incorporated its oral decision in a written order that was subject to review under statutory provisions.35 In light of a recent Kansas Supreme Court decision, counsel should remember that an agency's failure to take action does not mean the KJRA is not applicable.36

3. What Procedures are Required to Initiate a Proceeding Under the KJRA?

   One purpose of the KJRA was to establish uniform procedures for litigants to use when challenging decisions by a state...