Michael S. Obermeier, J.
When the pens of ancient mapmakers etched out the edges of the known world, legend tells that they often inscribed the edges of their creations with the warning hie sunt dracones. Whether this label was intended to reflect a sincere warning about the dangers of the unknown or was merely meant to add a little artistic flair-or, indeed, whether it ever really happened at all-is a matter of fair debate that, unfortunately, exceeds the scope of this article.1 Ancient cartographic practices notwithstanding, when it comes to the practice of law-and, particularly, to the Kansas Judicial Review Act ("KJRA")-the failure to study the landscape before plunging ahead can lead to an ail-too draconian result for the unwary.
As the statutory vehicle for judicial review of agency actions in this state, the KJRA is not particularly obscure. A KJRA case is technically a civil action and is subject to supplement, where appropriate, by Chapter 60 of the Kansas Statutes Annotated.3 Nevertheless, because it is so distinct from other areas of civil litigation, its contours may be unfamiliar-and thus, perilous-to those who do not routinely practice administrative law. Unlike many other kinds of civil actions4 found at the district court level, a KJRA case is, fundamentally, an appellate proceeding,5 and thus it is beset with hidden dangers to an unwary litigant. Fortunately, the analytical approach to a KJRA case follows a specific, logical pattern that, while distinct from more freewheeling causes of action, can be readily pieced together by a prepared attorney.
Because many potential dangers may not be particularly obvious to an attorney unfamiliar with the KJRA, and because many of these dangers may be fatal to a case, this article is intended to serve as a road map to some of the latent jurisdictional traps hidden within the KJRA. Secondarily, this article aims to lay out the various standards of review available under the KJRA, with special emphasis on the recent changes made to such review by case law or statutory updates. This article is not a how-to guide to the KJRA;6 however; it is merely an attempt to help keep the unwary from getting lost along the way.
I. Highway to the Danger Zone: Establishing Subject Matter Jurisdiction Under the KJRA
Legislative history indicates that "the two main goals for the KJRA were uniform treatment of agency actions and increased accessibility to the court system."7 At its core, the KJRA stands for the proposition that whenever an agency of this state does-or fails to do-something, there must be some mechanism by which a court can review that action or inaction. The notion that no one is above scrutiny resonates from the very heart of our system of government.8 Nevertheless, despite its fundamentally anti-authoritarian ethos, care must be made to ensure that the procedural restrictions placed upon judicial review by the KJRA do not unfairly abrogate a petitioner's right to review in favor of an outsized concern for "finality" or "efficiency"9 KJRA does not, after all, stand for the Kafkaesque Judicial Review Act,10 but as with any system of checks and balances, the devil is very much in the details. Understanding the contours of these details is essential to obtaining meaningful review under the KJRA.
Unlike most civil actions, over which a district court has general jurisdiction,11 the KJRA is purely a creature of statute. As such, a district court's jurisdiction over KJRA litigation is limited by the statutory constraints placed upon it, and a petitioner's failure to properly establish the district court's jurisdiction within those constraints terminates any chance the petitioner might have had at establishing the merits of the case. Nevertheless, there is no great secret to establishing jurisdiction of the reviewing district court under the KJRA: the petitioner need not perform any secret thaumaturgical ritual to achieve this, and blood pacts sworn at the crossroads at midnight, whatever their usefulness in other areas of civil litigation, are utterly wasted on attempts to obtain judicial review.
In order to qualify for judicial review under the KJRA, a petitioner must demonstrate that he or she 1) has standing, 2) has exhausted administrative remedies, if applicable, 3) has timely filed a petition for judicial review, and 4) except in very limited circumstances, that the challenged agency action is a final agency action.13 This last element is the most fundamental, and thus is the natural starting point for this article's examination of the KJRA.
II. Agency Action
As observed earlier, a thoughtful petitioner ought to approach a challenge to a particular agency action- or inaction-from the perspective that there must be some way to obtain review over that (in)action, whether through a KJRA petition, a mandamus claim, a tort action, or other legal mechanism. Nevertheless, as Indiana Jones's Grail Knight might caution, "You must choose. But choose wisely[!]"14 As will be seen, selecting the wrong challenge mechanism, like choosing a false Grail, can be fatal-if only to your case.
The KJRA Applies to Agency Actions Except for those "Specifically Exempted"
As articulated above, the most fundamental element of a KJRA case is the requirement of an agency action. Under the KJRA, the term "agency" simply refers to a "state agency"15 which is further defined as: any officer, department, bureau, division, board, authority, agency, commission or institution of this state which is authorized by law to administer, enforce or interpret any law of this state but does not include any political or taxing subdivision of the state, or any agency thereof, or the judicial or legislative branch of state government. 16
The term "agency action," as used in the KJRA, carries an incredibly broad definition: (b) "Agency action" means:
(1) The whole or a part of a rule and regulation or an order;
(2) the failure to issue a rule and regulation or an order; or
(3) an agency's performance of, or failure to perform, any other duty, function or activity, discretionary or otherwise. 17
It is difficult to overstate the expansiveness of this final subsection. However, the KJRA does not extend to requests for judicial review of all agency actions-only those actions that are "not specifically exempted by statute from the provisions of" the KJRA.18 This necessarily foists the unenviable burden of proving a negative-that the agency action they seek to challenge is not specifically exempted-upon erstwhile petitioners before they can obtain judicial review under the KJRA.
Nevertheless, such specific exemptions are relatively rare. The KJRA itself only lists eight such exempt classes of agency actions.19 In addition to those exemptions, the Kansas Court of Appeals recently considered the question of whether a petition for judicial review under the KJRA was the proper mechanism to obtain review of the Director of Workers Compensation's decision to deny an insurance carrier's request for reimbursement.20 In Cincinnati Ins. Co. v. Karns, an insurer mistakenly stipulated before an administrative law judge that it had only paid an injured worker $43,275-72 in temporary total disability benefits, when, in actuality, it had paid $79,765-72 in TTD.21 The ALJ entered an award of $125,000, minus any TTD that had already been paid, and, based on the (incorrect) stipulation, the insurer paid the worker an additional $81,754.28.22
Subsequently, the insurer discovered its error and contacted the Director of Workers Compensation, asking the Director to order the Kansas Workers Compensation Fund to reimburse the insurer for the inadvertent $28,755-96 overpayment.23 The Director denied that request and a subsequent request for reconsideration, and the insurer filed a petition for judicial review in the Shawnee County District Court.24 The district court determined that it lacked subject matter jurisdiction to consider the petition, and the insurer then appealed to the Kansas Court of Appeals.25
In order to evaluate the insurer's argument that, while the Kansas Workers Compensation Act ("KWCA") provided no mechanism to challenge the Director's denial under K.S.A. 44-534a(b), the KJRA "step[ped] in" so as to grant district courts jurisdiction to review such claims, the court of appeals considered whether the KWCA was specifically exempted by statute. After commenting that the Kansas Supreme Court's construction of the KWCA was "substantial, complete, and exclusive" for the purposes of covering "every phase of the right to compensation and of the procedure for obtaining it," the court of appeals observed that the KWCA explicitly provides for the right to appeal the ...