Law Review and Bar Journal References:

"Challenging and Defending Agency Actions in Kansas," Steve Leben, 64 J.K.B.A. No. 5, 22, 23 (1995).

"Writing to the Kansas Appellate Courts: A Lesson in Appellate Jurisdiction," Autumn Fox, 69 J.K.B.A. No. 4, 32 (2000).

"Governmental Immunity: Recent Developments Concerning the Eleventh Amendment and the Kansas Tort Claims Act," Kevin J. Breer and Justin D. Pullikan, 70 J.K.B.A. No. 7, 24 (2001).

"Attention Kansas Water Right Holders: Be Nice to Your Neighbors, They're Policing Your Water Rights [Hawley v. Kansas Dep't of Agric., 132 P.3d 870 (Kan. 2005)]," Tyler A. Darnell, 46 W.L.J. 429 (2007).

"2009 Amendments to the Kansas Administrative Procedure Act and the Kansas Judicial Review Act," Mary Feighny, 78 J.K.B.A. No. 9, 21 (2009).

Attorney General's Opinions:

Administrative procedures; separation of powers doctrine considered. 97-39.

CASE ANNOTATIONS

1. Cited; scope of judicial review on appeal from KCC ratemaking order in re Wolf Creek nuclear facility examined. Kansas Gas & Electric Co. v. Kansas Corporation Comm'n, 239 Kan. 483, 497, 720 P.2d 1063 (1986).

2. Cited; appellate court's scope of review (K.S.A. 77-621) as remaining unchanged in workers compensation cases examined. Williams v. Excel Corp., 12 Kan. App. 2d 662, 664, 756 P.2d 1104 (1988).

3. Where review of order suspending driver's license sought, licensee carries burden of proof at de novo hearing. Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 761, 758 P.2d 226 (1988).

4. Appropriate standards of review as excluding city and county rezoning decisions examined. Landau v. City Council of Overland Park, 244 Kan. 257, 273, 767 P.2d 1290 (1989).

5. Cited in examination of revenue department's authority to delete suspension order under K.S.A. 40-3104. State v. Damman, 244 Kan. 487, 490, 769 P.2d 662 (1989).

6. Taxpayer's collateral attack of foreclosure judgment by refund proceedings before BOTA rather direct appeal as impermissible examined. In re Tax Protest of Liston Foundation, 13 Kan. App. 2d 353, 354, 771 P.2d 77 (1989).

7. Act did not change standard of review to be applied by district courts in workers compensation cases. Monroe v. General Motors Corp., 13 Kan. App. 2d 460, 464, 773 P.2d 683 (1989).

8. Board of review's decision regarding compensation benefits to employee discharged for failing off-the-job drug usage test examined. National Gypsum Co. v. Kansas Employment Security Bd. of Review, 244 Kan. 678, 682, 772 P.2d 786 (1989).

9. Cited by dissent; majority holding judicial branch employees not covered by public employer-employee relations act (PEERA 75-4321 et seq.). Kansas Ass'n of Public Employees v. Public Employees Relations Bd., 13 Kan. App. 2d 657, 662, 778 P.2d 377 (1989).

10. Scope of review in workers compensation cases (K.S.A. 44-556) not altered by act. Reeves v. Equipment Service Industries, Inc., 245 Kan. 165, 176, 777 P.2d 765 (1989).

11. Taxable status under K.S.A. 79-201a Second of property owned to produce revenue for financing governmental function (airport, K.S.A. 27-315 et seq.) examined. Tri-County Public Airport Auth. v. Board of Morris County Comm'rs, 245 Kan. 301, 304, 777 P.2d 843 (1989).

12. Board of tax appeals order whether multi-state business is unitary for tax purposes subject to review hereunder. In re Tax Appeal of A.M. Castle & Co., 245 Kan. 739, 783 P.2d 1286 (1989).

13. Act inapplicable to case of permanent state employee denied due process hearing following demotion in 1971. Kansas Dept. of SRS v. Goertzen, 245 Kan. 767, 776, 783 P.2d 1300 (1989).

14. Judicial review of county appraiser's discretion in valuing individual items of personal property examined. In re Tax Appeal of Director of Property Valuation, 14 Kan. App. 2d 348, 351, 791 P.2d 1383 (1989).

15. 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).

16. State historic preservation officer's authority as not denying due process, owner's requirements regarding alternatives examined. Allen Realty, Inc. v. City of Lawrence, 14 Kan. App. 2d 361, 363, 790 P.2d 948 (1990).

17. Court's scope of review of agency actions (K.S.A. 77-621) set forth and applied. Mulford v. Kansas Dept. of Human Resources, 14 Kan. App. 2d 386, 790 P.2d 957 (1990).

18. Racing commission orders subject to broad grant of review in act; Supreme Court lacks jurisdiction to hear direct appeal. Little Balkans Foundation, Inc. v. Kansas Racing Comm'n, 247 Kan. 180, 189, 795 P.2d 368 (1990).

19. Nonexempt tax status of city's royalty interest in oil and gas lease on city-owned property examined. City of Liberal v. Seward County, 247 Kan. 609, 611, 802 P.2d 568 (1990).

20. Court not precluded in hearing challenge to provision of Kansas public employer-employee relations act based on unconstitutionality of statute. Slifer v. Public Employee Relations Bd., 737 F. Supp. 1149, 1150 (1990).

21. Act for judicial review inapplicable to appeal from unified school district board acting as quasi-judicial body. O'Hair v. U.S.D. No.300, 15 Kan. App. 2d 52, 56, 805 P.2d 40 (1991).

22. Order of state civil service board regarding dismissal for conduct constituting per se cause for discipline (K.S.A. 75-2949f) examined. Sanstra v. Kansas Highway Patrol, 15 Kan. App. 2d 148, 804 P.2d 1007 (1991).

23. Review of decision of university residence committee on student's application for resident status examined. Peck v. University Residence Committee of Kansas State Univ., 248 Kan. 450, 807 P.2d 652 (1991).

24. District Court's review of Board of Healing Arts' action examined; party asserting invalidity of board's action has burden of proof. Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589, 593, 808 P.2d 1355 (1991).

25. Inadequacy of notice by medicaid agency of major policy changes affecting reimbursability of claims examined. Riverside Hospital, Inc. v. State Department of SRS, 248 Kan. 609, 610, 808 P.2d 1348 (1991).

26. Appellate review of district court review of administrative decision; party asserting invalidity of action has burden of proving same. Kaufman v. Kansas Dept. of SRS, 248 Kan. 951, 811 P.2d 876 (1991).

27. Act for judicial review does not apply to agency actions governed by open records act (K.S.A. 45-215 et seq.). State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991).

28. Act is exclusive means for judicial review of agency actions unless the agency is specifically exempted. Kansas Sunset Assocs. v. Kansas Dept. of Health & Environment, 16 Kan. App. 2d 1, 818 P.2d 797 (1991).

29. Act contains no provision for substantial compliance with service requirement. Claus v. Kansas Dept. of Revenue, 16 Kan. App. 2d 12, 13, 825 P.2d 172 (1991).

30. District court lacked subject matter jurisdiction in action to recover vehicle registration taxes; failure to exhaust administrative remedies. Dean v. State, 250 Kan. 417, 420, 826 P.2d 1372 (1992).

31. Catalysts as circumstantially exempt from compensating use tax (K.S.A. 79-3602, 79-3606) examined. In re Tax Appeal of Derby Refining Co., 17 Kan. App. 2d 377, 380, 838 P.2d 354 (1992).

32. Driver's license suspension proceedings (K.S.A. 8-1002) governed by act; substantial compliance ineffective. State v. Lovett, 17 Kan. App. 2d 450, 455, 839 P.2d 53 (1992).

33. Authority of board under adult care home administrators act (K.S.A. 65-3501 et seq.) to revoke or discipline license holders examined. Havens v. Board of Adult Care Home Administrators, 17 Kan. App. 2d 527, 528, 839 P.2d 1253 (1992).

34. Tax-exempt status of church property examined where caretaker's house built on church campgrounds. Midwest Presbytery v. Jefferson County Appraiser, 17 Kan. App. 2d 676, 677, 843 P.2d 277 (1992).

35. Decision by department in independent contractor v. employer-employee situation; limitation of judicial review. Crawford v. Kansas Dept. of Human Resources, 17 Kan. App. 2d 707, 708, 845 P.2d 703 (1992).

36. Board of tax appeals' findings regarding charitable purposes of claimant examined. Woman's Club of Topeka v. Shawnee County, 253 Kan. 175, 179, 853 P.2d 1157 (1993).

37. Provisions in K.S.A. 77-612, 77-613 relative to judicial appeals of decisions of Kansas human resources commission (K.S.A. 44-1001 et seq.) examined. United Steelworkers of America v. Kansas Comm'n on Civil Rights, 253 Kan. 327, 330, 855 P.2d 905 (1993).

38. Appellate court may not try case de novo or substitute its judgment for that of Board of Tax Appeals. Wolf Creek Golf Links, Inc. v. Board of Johnson County Comm'rs, 18 Kan. App. 2d 263, 853 P.2d 62 (1993).

39. Cited in review of Kansas water authority's water transfer order on statutory, jurisdictional and administrative procedure grounds. Water District No. 1 v. Kansas Water Authority, 19 Kan. App. 2d 236, 240, 866 P.2d 1076 (1994).

40. Cited; whether K.S.A. 60-102 should be used to compute time requirements unless statute expressly provides otherwise examined. State v. Johnson, 19 Kan. App. 2d 315, 317, 868 P.2d 555 (1994).

41. Whether act was plaintiff's exclusive remedy in multicount action resulting from administrative license suspension examined. Lindenman v. Umscheid, 255 Kan. 610, 614, 875 P.2d 964 (1994).

42. Whether Kansas board of healing arts has the capacity to be sued under KTCA (K.S.A. 75-6101 et seq.) and ordered to pay damages examined. Corder v. Kansas Board of Healing Arts, 256 Kan. 638, 662, 889 P.2d 1127 (1994).

43. Whether workers compensation board has authority to substitute its judgment for ALJ's decision in reviewing administrative decisions examined. Helms v. Tollie Freightways, Inc. 20 Kan. App. 2d 548, 551, 889 P.2d 1151 (1995).

44. Cited; Indian land excluded from boundaries of state not subject to taxation unless specifically included by treaty or act of Congress; state taxation of fee-patented Indian-owned land may be proper. In re Tax Exemption Application of Kaul, 261 Kan. 755, 764, 933 P.2d 717 (1997).

45. BOTA members replaced; previous order reversed on reconsideration upholding sales tax assessment; judicial deference due decision considered. In re Tax Appeal of Atchison Cablevision, 262 Kan. 223, 225, 936 P.2d 721 (1997).

46. Tariff properly construed in case alleging discrimination in failure to disclose and apply tariff to plaintiff manufacturer. Grindsted Products, Inc. v. Kansas Corporation Comm'n, 262 Kan. 294, 302, 937 P.2d 1 (1997).

47. Substantial competent evidence justified BOTA's oil lease valuation taking post-January 1 production data into consideration. Board of Ness County Commr's v. Bankoff Oil Co., 265 Kan. 525, 527, 960 P.2d 1279 (1998).

48. No requirement to pursue state judicial review under KAJR prior to filing federal action. Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 519 (1998).

49. Court will not interrupt administrative process of determining whether insurance commissioner has power to regulate stop-loss insurance. American Trust Administrators, Inc. v. Sebelius, 267 Kan. 480, 490, 981 P.2d 248 (1999).

50. Response to certified question from sister jurisdiction regarding KCC tariff is under Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq., not KJRA. Danisco Ingredients USA, Inc. v. Kansas City Power & Light Co., 267 Kan. 760, 764, 986 P.2d 377 (1999).

51. Decision of county commissioners as fence viewers under K.S.A. 29-201 is to be taken under K.S.A. 19-223 not 77-601; dismissed for lack of jurisdiction; K.S.A. 77-601 applies to state agencies. Kaplan v. Board of Johnson County Comm'rs, 269 Kan. 122, 3 P.3d 1270 (2000).

52. KCC investigative order was a nonfinal agency action not ripe for judicial review under Act. Williams Gas Pipelines Central, Inc. v. Kansas Corporation Commission, 27 Kan. App. 2d 573, 7 P.3d 311 (2000).

53. Court must presume administrative agency's finding of dismissal without cause as valid. Dillard Dept. Stores, Inc. v. Kansas Dept. of Human Resources, 28 Kan. App. 2d 229, 13 P.3d 358 (2000).

54. SRS determination that appellant was not entitled to Medicaid assistance affirmed. Fisher v. Kansas Dept. of SRS, 271 Kan. 167, 21 P.3d 509 (2001).

55. Unsuccessful legislative candidate who filed complaint with Ethics Commission has standing to appeal through Kansas Act for Judicial Review and Civil Enforcement of Agency Actions the commission's finding of insufficient evidence. Nichols v. Kansas Governmental Ethics Comm'n, 28 Kan. App. 2d 524, 18 P.3d 270 (2001).

56. KCC's approval of electric utility rate increase affirmed; use of hypothetical equity component within capital structure of utility allowed. Kansas Industrial Consumers v. Kansas Corporation Comm'n., 30 Kan. App. 2d 332, 42 P.3d 110 (2002).

57. KCC's approval of electric utility rate increase approved as findings are supported by substantial competent evidence. Western Resources v. Kansas Corporation Comm'n., 30 Kan. App. 2d 348, 42 P.3d 162 (2002).

58. KJRA is exclusive remedy for professor claiming wrongful discharge. Gaskill v. Ft. Hays State Univ., 31 Kan. App. 2d 544, 70 P.3d 693 (2003).

59. Appraisal of home affirmed. Krueger v. Board of Woodson County Comm'rs, 277 Kan. 486, 85 P.3d 686 (2004).

60. Certain services and fees of water department subject to tax as well as computer equipment used by department. In re Tax Appeal of City of Wichita, 277 Kan. 487, 86 P.3d 513 (2004).

61. Voir dire of members of administrative panel not necessary for due process when there is no indication of bias. Westboro Baptist Church, Inc. v. Patton, 32 Kan. App. 2d 941, 93 P.3d 718 (2004).

62. University upheld in its ruling plaintiff was not entitled to in-state tuition as law student. Lockett v. University of Kansas, 33 Kan. App. 2d 931, 111 P.3d 170 (2005).

63. Mentioned in appeal of SRS federal adoption assistance payment decision. Ninemire v. Kansas Dept. of SRS, 284 Kan. 582, 585, 162 P.3d 22 (2007).

64. KJRA applicable to order of board of tax appeals denying KSU property tax exemption. In re Tax Exempt. Application of K.S.U. SE Ag. Research Center, 37 Kan. App. 2d 718, 721, 157 P.3d 1 (2007).

65. Exclusive remedy for review of motor carrier decision is under Kansas Act for Judicial Review (KJRA). Midwest Crane & Rigging, Inc. v. Kansas Corporation Commission, 38 Kan. App. 2d 269, 271, 163 P.3d 1244 (2007).

66. Landfill permit; court discusses and applies "standing" test. Board of Sumner County Comm'rs v. Bremby, 38 Kan. App. 2d 557, 168 P.3d 1034 (2007).

67. Whether a plaintiff exhausted administrative remedies is question of law for appellate court. Guss v. Fort Hays State Univ., 38 Kan. App. 2d 912, 916, 173 P.3d 1159 (2008).

68. Cited; K.S.A. 77-615 applies to adjudicative proceedings; proceedings under KJRA construed broadly to refer to "process" used by agency. Board of Sumner County Comm'rs v. Bremby, 286 Kan. 745, 747, 189 P.3d 494 (2008).

69. Party claiming BOTA's actions invalid bears burden to show invalidity in judicial review under K.S.A. 77-601. In re Tax Exemption Application of City of Garnett, 39 Kan. App. 2d 242, 245, 177 P.3d 1279 (2008).

70. KJRA applies to review administrative decisions relating to suspension of driver's licenses. Cornelius v. Kansas Dept. of Revenue, 39 Kan. App. 2d 334, 336, 180 P.3d 579 (2008).

71. Workers compensation case appealed; recreational and social events exception of K.S.A. 44-508(f) construed and applied. Hizey v. MCI, 39 Kan. App. 2d 609, 612, 181 P.3d 583 (2008).

72. Cited in workers compensation opinion discussing the "going and coming rule" and exceptions thereto. Halford v. Nowak Construction Co., 39 Kan. App. 2d 935, 937, 186 P.3d 206 (2008).

73. Cited; the standard of review for BOTA is governed by K.S.A. 77-621. In re Tax Exemption Application of Westboro Baptist Church, 40 Kan. App. 2d 27, 35, 189 P.3d 535 (2008).

74. Cited; when agency grants summary judgment court must resolve facts and inferences in favor of nonmoving party. Sheldon v. KPERS, 40 Kan. App. 2d 75, 79, 189 P.3d 554 (2008).

75. Cited; water rights terminated, no beneficial use without due and sufficient cause for five successive years. Frick Farm Properties v. Kansas Dept. of Agriculture, 40 Kan. App. 2d 132, 135, 190 P.3d 983 (2008).

76. Cited; appeal to secretary of revenue essential to exhaustion of administrative remedies. Blomgren v. Kansas Dept. of Revenue, 40 Kan. App. 2d 208, 211, 191 P.3d 320 (2008).

77. Cited; appeal from BOTA; court finds that BOTA erroneously interpreted sales tax exemption statute regarding educational institutions. In re Tax Appeal of Graceland College Center, 40 Kan. App. 2d 665, 667, 195 P.3d 245 (2008).

78. Cited; state agency erroneously interpreted or applied law regarding discretionary trust regarding medicaid eligibility. White v. Kansas Health Policy Authority, 40 Kan. App. 2d 971, 975, 198 P.3d 172 (2008).

79. Cited; chief engineer correctly decided landowner needed a permit for stream obstruction. Frank v. Kansas Department of Agriculture, 40 Kan. App. 2d 1024, 1026, 198 P.3d 195 (2008).

80. Cited; appellant failed to exhaust administrative remedies before seeking district court action; appeal dismissed. Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 199 P.3d 781 (2009).

81. Under K.S.A. 77-614 a petition for judicial review requires petitioner's reasons for relief, not factual bases. Rebel v. Kansas Dept. of Revenue, 288 Kan. 419, 204 P.3d 551 (2009).

82. Ten-day limit for filing petition for review per K.S.A. 8-259 applies to every order of suspension issued pursuant to K.S.A. 8-1001 et seq. Moser v. Kansas Dept. of Revenue, 289 Kan. 513, 213 P.3d 1061 (2009).

83. Substantial evidence found to support termination of a party's water rights. Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 216 P.3d 170 (2009).

84. Review of workers compensation board is limited to questions of law. Mitchell v. Petsmart, Inc., 41 Kan. App. 2d 523, 203 P.3d 76 (2009).

85. Dissenting opinion would affirm district court's dismissal of negligence claim by nurse against drug testing firm. Berry v. National Medical Services, Inc., 41 Kan. App. 2d 612, 205 P.3d 745 (2009).

86. K.S.A. 79-201b Third , 79-201 Second, 79-201 Ninth are discussed and applied in denying tax exemption. In re Tax Exemption Application of Gracious Promise Foundation, 42 Kan. App. 2d 180, 205 P.3d 791 (2009).

87. Party cannot collaterally attack a final agency order in a civil enforcement action by the agency. State ex rel. Bremby v. Thorson, 42 Kan. App. 2d 188, 210 P.3d 132 (2009).

88. Court discusses and applies principles regarding independent contractor versus employee status involving cab drivers. Hill v. Kansas Dept. of Labor, 42 Kan. App. 2d 215, 210 P.3d 647 (2009).

89. Health club's purchase of electricity, heat, water and other personal property not exempt from sales tax. In re Tax Appeals of Genesis Health Clubs, 42 Kan. App. 2d 239, 210 P.3d 663 (2009).

90. Breach of contract claims against state agency must be brought under Kansas act for judicial review and civil enforcement of agency actions. 10 th Street Medical v. State, 42 Kan. App. 2d 249, 210 P.3d 670 (2009).

91. Decisions of workers compensation board are reviewed under the Kansas judicial review act. Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 212 P.3d 239 (2009).

92. Workers compensation board award upheld in case involving recreational and social events. Douglas v. Ad Astra Information Systems, 42 Kan. App. 2d 441, 213 P.3d 764 (2009).

93. District court upheld SRS decision overruling the denial of an application for affiliate status as provider for disabled person. Johnson Co. Developmental Supports v. Kansas Dept. of SRS, 42 Kan. App. 2d 570, 216 P.3d 658 (2009).

94. KWAA confers standing on water appropriation applicants and applies to agency review, while KJRA confers standing on a party to the proceeding and applies to judicial review. Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 249 P.3d 434 (2011).

95. Reviews of decisions from the court of tax appeals were conducted in the manner prescribed by the Kansas judicial review act. In re Equalization Appeal of Kansas Star Casino, 52 Kan. App. 2d 50, 52, 362 P.3d 1109 (2015).

96. The Kansas judicial review act does not contain a provision to appeal a decision of the director of workers compensation. Cincinnati Ins. Co. v. Karns, 52 Kan. App. 2d 846, 851, 379 P.3d 399 (2016).

97. The Kansas judicial review act does not govern a challenge to an agency action that claims retaliatory discharge from employment. Platt v. Kansas State Univ., 305 Kan. 122, 137, 379 P.3d 362 (2016).