KANSAS OFFICE of
  REVISOR of STATUTES

  

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44-1011. Enforcement of commission orders; judicial review; procedure. (a) The commission, attorney general or county or district attorney, at the request of the commission, may secure enforcement of any final order of the commission in accordance with the Kansas judicial review act. The evidence presented to the commission, together with its findings and the order issued thereon, shall be certified by the commission to the district court as its return. No order of the commission shall be superseded or stayed during the proceeding on review unless the district court shall so direct.

(b) Any action of the commission pursuant to the Kansas act against discrimination is subject to review in accordance with the Kansas judicial review act except: (1) As provided by K.S.A. 44-1044, and amendments thereto; (2) the attorney general or county or district attorney, in addition to those persons specified by K.S.A. 77-611, and amendments thereto, shall have standing to bring an action for review; and (3) on review, the court shall hear the action by trial de novo with or without a jury in accordance with the provisions of K.S.A. 60-238, and amendments thereto, and the court, in its discretion, may permit any party or the commission to submit additional evidence on any issue. The review shall be heard and determined by the court as expeditiously as possible. After hearing, the court may affirm the adjudication. If the adjudication by the commission is not affirmed, the court may set aside or modify it, in whole or in part, or may remand the proceedings to the commission for further disposition in accordance with the order of the court.

The commission's copy of the testimony shall be available at all reasonable times to all parties for examination without cost, and for the purpose of judicial review of the order. The review shall be heard on the record without requirement of printing.

The commission shall be deemed a party to the review of any order by the court.

History: L. 1961, ch. 248, § 8; L. 1963, ch. 279, § 6; L. 1965, ch. 323, § 7; L. 1967, ch. 285, § 3; L. 1970, ch. 192, § 6; L. 1979, ch. 161, § 3; L. 1986, ch. 318, § 64; L. 2010, ch. 17, § 79; July 1.

Law Review and Bar Journal References:

Mentioned in comment concerning discrimination against Indians. Jerry L. Bean, 20 K.L.R. 468, 480 (1972).

"Administrative Law: The Kansas Commission on Civil Rights—True De Novo Review Arrives," Samuel D. Ogelby, 16 W.L.J. 161, 163, 168 (1976).

Cited in note on review of administrative decisions, 17 W.L.J. 312 (1978).

"Administrative Law: Judicial Review of No Probable Cause Determinations," Jan E. Montgomery, 18 W.L.J., 335 (1979).

"Judicial Review of Administrative Action—Kansas Perspectives," David L. Ryan, 19 W.L.J. 423, 426 (1980).

"Rethinking Kansas Administrative Procedure," Marilyn V. Ainsworth and Sidney A. Shapiro, 28 K.L.R. 419, 435 (1980).

"Kansas Discrimination Law—Practice and Procedure," David L. Ryan, 49 J.K.B.A. 35, 45, 46 (1980).

"Appellate Court Jurisdiction: An Update," Debra S. Byrd, 58 J.K.B.A. No. 1, 21, 23 (1989).

Attorney General's Opinions:

Cities powers of home rule; human relations commission. 86-90.

CASE ANNOTATIONS

1. Separation of powers doctrine prevents legislature from imposing trial de novo on judiciary in reviewing orders of administrative agency. Jenkins v. Newman Memorial County Hospital, 212 Kan. 92, 93, 96, 99, 100, 510 P.2d 132; disapproved, Stephens v. Unified School District, 218 Kan. 220, 225, 226, 230, 231, 546 P.2d 197.

2. Where no notice of denial of application for rehearing within ten days, appeal time runs from date decisional order served. Kansas Commission on Civil Rights v. City of Topeka Street Department, 212 Kan. 398, 400, 401, 402, 403, 511 P.2d 253.

3. Issues of law and fact to be tried de novo on appeal to district court; scope. Badger v. Goodyear Tire & Rubber Co., 218 Kan. 218, 219, 546 P.2d 214.

4. Construed; requiring trial de novo does not violate constitutional separation of powers doctrine; trial limited to issues raised in application for rehearing. Stephens v. Unified School District, 218 Kan. 200, 225, 226, 230, 231, 236, 238, 546 P.2d 197.

5. Referred to in determining scope of review on appeal from school board decision limited by K.S.A. 60-2101. Brinson v. School District, 223 Kan. 465, 468, 470, 576 P.2d 602.

6. Section provides no right of judicial review of "no probable cause" determination. Bush v. City of Wichita, 223 Kan. 651, 653, 654, 658, 660, 576 P.2d 1071.

7. Time for appeal from district court decision under this act governed by this section. Everett v. Blue Cross-Blue Shield Ass'n, 225 Kan. 63, 64, 587 P.2d 873.

8. Appeal hereunder; denial of sick leave benefits for pregnancy related disabilities not violative of K.S.A. 44-1009. Harder v. Kansas Commission on Civil Rights, 225 Kan. 556, 559, 592 P.2d 456.

9. Appeal heard hereunder requires trial de novo; evidentiary hearing required. Jones v. The Grain Club, 227 Kan. 148, 149, 152, 605 P.2d 142.

10. Admission of physician's deposition in defense of school district for nonhiring of handicapped person was not abuse of discretion. U.S.D. No. 259 v. Kansas Comm'n on Civil Rights, 7 Kan. App. 2d 319, 321, 640 P.2d 1291 (1982).

11. Trial court erred in granting default judgment on the ground KCCR did not timely certify evidence presented, together with its findings and order issued. Kansas Turnpike Authority v. Jones, 7 Kan. App. 2d 599, 600, 601, 602, 645 P.2d 377 (1982).

12. Service of notice of appeal on complainant's attorney does not deprive court of jurisdiction over appeal. Legg v. Topeka Halfway House, Inc., 7 Kan. App. 2d 669, 670, 671, 646 P.2d 1155 (1982).

13. Court will review action of commission if there is no evidentiary jury trial at hearing or on appeal. Woods v. Midwest Conveyor Co., 231 Kan. 763, 773, 774, 648 P.2d 234 (1982).

14. Appeals from KCCR by trial de novo; proceedings in nature of judicial review of KCCR order and limited to issues fairly raised in application for rehearing. Flanigan v. City of Leavenworth, 232 Kan. 522, 527, 528, 657 P.2d 555 (1983).

15. Individual officers and employees not liable if not parties to original proceedings before the KCCR; joinder not authorized. Kansas Comm'n on Civil Rights v. Service Envelope Co., 233 Kan. 20, 21, 22, 27, 660 P.2d 549 (1983).

16. Trial court's power to hear additional evidence does not include power to disregard commission's record by requiring witnesses to retestify. Nurge v. University of Kansas Med. Center, 234 Kan. 309, 318, 674 P.2d 459 (1983).

17. General rule relative to appellate review applies in appeals from KCCR orders. Woods v. Midwest Conveyor Co., 236 Kan. 734, 736, 697 P.2d 52 (1985).

18. Cited; extensive review of administrative appeal statutes where issue was service on appeal of driver's license suspension (K.S.A. 8-259). In re Gantz, 10 Kan. App. 2d 299, 300, 698 P.2d 385 (1985).

19. Cited; failure to seek judicial review of teacher employment termination under K.S.A. 72-5436 et seq. precludes complaint hereunder. Neunzig v. Seaman U.S.D. No. 345, 239 Kan. 654, 656, 662, 722 P.2d 569 (1986).

20. Statute, when read with K.S.A. 44-1010 and 44-1115, vests exclusive jurisdiction of age discrimination claim in district court. Ditch v. Bd. of County Com'rs of County of Shawnee, 650 F. Supp. 1245, 1253 (1986).

21. Order issued under act not res judicata for civil action arising out of same incident and same statutory authority. Parker v. Kansas Neurological Institute, 13 Kan. App. 2d 685, 688, 778 P.2d 390 (1989).

22. Appellate court's standard of review in controversies arising under professional negotiations act (K.S.A. 72-5413 et seq.) examined. U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 139, 785 P.2d 993 (1990).

23. Cited; construction and application of time allowed for filing petition with KCCR. United Steelworkers of America v. Kansas Comm'n on Civil Rights, 17 Kan. App. 2d 863, 864, 867, 845 P.2d 89 (1993).

24. Act requires petition for reconsideration (K.S.A. 44-1010) by agency as prerequisite to action in district court. United Steelworkers of America v. Kansas Comm'n on Civil Rights, 253 Kan. 327, 330, 855 P.2d 905 (1993).

25. Whether review of KHRC action is a "statute of the state" providing right to jury trial upon demand examined. Wagher v. Guy's Foods, Inc., 256 Kan. 300, 322, 885 P.2d 1197 (1994).

26. Case dismissed where plaintiffs failed to allege they exhausted all administrative remedies. Butler v. Capitol Federal Sav., 904 F. Supp. 1230, 1234 (1995).

27. Substantial competent evidence supported district court's ruling in racial discrimination/hostile work environment/constructive discharge case brought hereunder. Garvey Elevators, Inc. v. Kansas Human Rights Comm'n, 265 Kan. 484, 485, 490, 499, 961 P.2d 696 (1998).

28. Administrative hearing examiner who determines relocation benefits performs a judicial function. Frick v. City of Salina, 289 Kan. 1, 208 P.3d 739 (2009).


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