June 5th. The Kansas Supreme Court has issued its opinion in Frick v. City of Salina (No. 99,791) a case concerning relocation benefits to businesses following a taking under eminent domain. In a nearly unanimous decision, written by Justice Marla Luckert, the Court held that Ben and Lavelle Frick were entitled to a new review in District Court of the record of the administrative proceeding that had awarded them a certain amount of benefits. The District Court had previously held that its review would only be based on whether the administrative procedure’s decisions could be upheld as a matter of law. Justice Johnson concurred in the result, but criticized the Court for not holding that the new trial would simply be a completely new review, with the Fricks able to bring new witnesses and introduce new evidence. No Justices dissented from the decision. Note: Former Chief Justice Kay McFarland and Justice Lawton Nuss took no part in the decision. Their places were filled by Judge Stephen Hill of the Court of Appeals and Senior Judge Edward Larson.
The background to the case was a public works project involving the City of Salina and KDOT with the City as the principal on the project. In order to complete the project it was necessary to take some retail property from the Fricks. There was a separate eminent domain dispute concerning the compensation for this which has been mutually settled. Under the terms of Kansas Law (in turn implementing a Federal requirement) in cases such as this, businesses which are forced to relocate are required to receive compensations for relocation costs. These costs were assessed by an independent examiner who awarded some money to the Fricks. The Fricks sought to appeal to the District Court where the statute governing such decisions stated they were entitled to trial de novo of the issue. The Court held that it was able to review the record of the examiner but not make new findings, and upheld the awards as supported in law.
The Kansas Supreme Court reversed the District Court and ordered a new hearing. In reaching that decision, it made two principal rulings. The first was that the terms of the Kansas Act for Judicial Review and the Civil Enforcement of Agency Actions and related Federal acts did not apply to this case, since the City of Salina was taking the title to the property and municipalities are excluded from that act. As a result, the rules laid down there governing administrative appeals did not apply.
The second decision made by the Court held that since the function of the examiner in this case was a largely judicial one (weighing claims and deciding upon damages) the District Court could perform a new trial without offending the separation of powers doctrine. However, because a record would have already been created and the statute framed the new trial as an appeal the new trial would only be based on evidence submitted to the examiner and would not allow the Fricks to bring new witnesses or information. The District Court had therefore erred in using too strict a standard and the case was remanded there to be reconsidered with the District Court forming new fact findings and interpretations of the evidence collected by the examiner.
Justice Lee Johnson issued a forceful concurrence. He felt that the Court was creating ambiguity by not construing de novo to plainly mean a new trial, with all the attributes (witnesses, evidence etc) one would expect of one. He accepted that where there could be separation of powers issues involved (e.g. the Legislature ordering a Judical body to carry out an Executive duty) the Court could not follow the words of the statute, but since in this scenario this was not the case he thought that the Legislature should be able to specify where a new trial was required and where an appeal process was required. His concurrence cites Justice Luckert’s decision in State v. Marsh for support. [Note: State v. Marsh was a capital case in which the Kansas Supreme Court’s ultimate decision striking down the death penalty was overturned by the United States Supreme Court. However the reasoning Johnson cites was not part of the decision that the U.S. Supreme Court took issue with, and therefore remains valid].