Archive for the ‘Administrative Law’ Category

Decision: Moser v. KDoR

September 4, 2009

August 28th. The Kansas Supreme Court has issued its opinion in Moser v. Kansas Department of Revenue (No. 96,734) an appeal from a suspension of a driving license. In a unanimous opinion, written by Justice Lee Johnson, the court held that an administrative appeal against a driving license suspension must be filed within 10 days of the suspension, or be procedurally blocked from further relief.

Brandon Moser was in a car accident and police suspect him of DUI. He refused a breath test. This was not the first time this had happened. Given all this, his license was suspended by the police officer attending the scene, who filled out a form notifying Moser that in 30 days his license would be suspended for 10 years, absent his appealing. Moser did not file an administrative appeal, and outside the 10 day period to do so filed a suit in District Court seeking to overturn his suspension on the grounds that the 10 year suspension was excessively penal.

The District Court heard his motion, because it was filed within 30 days of the suspension notice. The Court found that in this case the 10 day rule did not apply and that a separate 30 day rule did. The Court then rejected Moser’s case on the grounds that he had not used up his administrative remedies.

Moser appealed the latter part, the Department of Revenue appealed the ruling about the 30 day rule applying. The Court of Appeals held that the 10 day rule applied but affirmed the District Court’s ruling that it could not reach the merits of the case. Moser appealed to the Kansas Supreme Court.

The Kansas Supreme Court agreed with the Court of Appeals. It found that the District Court’s ruling that the 30 day appeal period applied was not supportable based on the plain reading of the statute. The 10 day rule is the one which applies. Therefore it found that there was no jurisdiction for the case to be heard in any court and affirmed the lower Courts’ dismissal of Moser’s actions.


Decision: Frick v. City of Salina

June 11, 2009

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].

Decision: Rebel v. Kansas Dept. of Revenue

April 4, 2009

March 27th. The Kansas Supreme Court has issued its opinion in Rebel v. Kansas Department of Revenue (No. 98,930), a judicial review of a driving license suspension for DUI. In a unanimous opinion, written by Justice Davis, the court upheld an unpublished opinion of the Court of Appeals which had reversed a District Court decision that the petition for judicial review had been improperly filed. The case was therefore reinstated, and remanded to the District Court for proceedings. Notes: This case was a companion case to Kingsley v. Kansas Dept. of Revenue, and treads essentially the same ground, clarifying an earlier decision about what the requirements are to bring such actions. Robert E. Davis is now the Chief Justice of the Kansas Supreme Court. At the time this case was argued, Kay McFarland was still the Chief Justice.

In October 2005, Derek Rebel was pulled over in Hays for driving erratically. He was tested for alcohol and found to be over the limit, though the test was not based on a valid sample as Rebel refused to complete the test. The police officer testifies that Rebel told him that he had consumed alcohol or drugs and that Rebel failed a field sobriety test. Consequently, Rebel’s driving license was suspended.

Rebel sought an administrative hearing, which affirmed the license suspension. He then sought judicial review and the District Court dismissed his case based on his petition not strictly adhering to the requirements of the statute governing judicial review of agency actions. He appealed to the Court of Appeals which held that he had properly filed his petition. The Department of Revenue appealed to the Kansas Supreme Court.

As in its ruling in Kingsley, the Kansas Supreme Court finds that Rebel did comply with the statute in his petition for judicial review. He demonstrated that he had standing to file the petition through having exhausted the agency actions, and he provided the facts which supported his reasons for believing that he would prevail in Court. [Rebel asserts that he did not complete the test due to a medical condition, and that the paperwork filed by the police was incorrectly completed].

Separately to the argument over whether Rebel’s petition was valid, the Department of Revenue argued that he could not litigate the claim relating to the alleged medical condition since he had not raised it in his administrative agency hearing, because in such cases judicial review is only available for matters raised there. The Court affirms that this is the legal rule but rejects the Department of Revenue’s argument here because the notes from the hearing indicate that the medical condition was mentioned there. A similar situation occurred in the companion case of Kingsley, with the Department of Revenue arguing that a particular issue was not raised in the hearing, when in fact it was. It would seem that ensuring the official record is complete in such hearings is an important step.

Decision: Kingsley v. Kansas Dept. of Revenue

April 1, 2009

March 27th. The Kansas Supreme Court has issued its opinion in Kingsley v. Kansas Department of Revenue (No. 98,301) a judicial review of a driving license suspension for DUI. In a unanimous decision, written by Justice Davis, the court held that both the District Court and the Court of Appeals had wrongly concluded that Joshua Kingsley had not properly filed his petition for judicial review. Kingsley’s case was therefore reinstated and remanded to the District Court for rulings on its merits (which were unaddressed). Note: Robert E. Davis is now the Chief Justice of the Kansas Supreme Court. At the time this case was argued, Kay McFarland was still the Chief Justice.

Joshua Kingsley was pulled over by police in Hays in 2005, driving erratically. He appeared to be drunk, and indeed admitted that he had been drinking, or taking drugs. A breath test revealed that he was above the allowable blood alcohol level. As a result, his driving license was suspended. Subsequently, Kingsley appealed against the suspension, arguing that the preliminary breath test and search of his vehicle had been illegal, depriving him of his due process rights. The Kansas Department of Revenue board which heard his appeal, ruled against him and affirmed the suspension of his driving license. He then filed a petition for judicial review of this decision in District Court. The District Court and the Court of Appeals both ruled that the petition failed to comply with the requirements of the statute which lays down this procedure, because it did not provide sufficient information about the appeal. These decisions were based on a previous Kansas Supreme Court decision which had held that jurisdiction was only granted to the courts for the judicial review process for appealing agency administrative decisions by correctly and carefully complying with the requirements set out in the statute. That case was Bruch v. Kansas Dept. of Revenue (2006).

In this case the Kansas Supreme Court reversed the Court of Appeals and District Court, clarifying its Bruch decision to make it clear that while the jurisdictional rules still apply, the lower courts in this case had been too swift to rule that Kingsley’s brief petition for judicial review had not met the requirements of the statute. The opinion demonstrates that Kingsley met the twin burdens under Bruch of showing that he was able to seek a judicial review of an agency decision and of stating the facts he sought to have reviewed. He met the former by being subject to the decision and having exhausted the administrative appeals process. He met the latter with his brief assertion that the DUI stop had been in breach of the fourth amendment. The Court carefully noted that the statute merely requires a statement of facts supporting the petition for review, not a legal argument as had been implied by the lower court decisions.

Kingsley’s case was therefore sent back to the District Court for further action. He is unlikely to be successful however, since while this case has been through the court system testing procedural issues the Kansas Supreme Court ruled in Martin v. Kansas Department of Revenue (2008) that held that the exclusionary rule does not apply to appeals of driving license suspensions.

Decision: Higgins v. Abilene Machine Inc

March 28, 2009

March 27th. The Kansas Supreme Court has issued its opinion in Higgins v. Abilene Machine Inc (No. 97,649) a workers compensation case that dealt with the question of the recoverability of expert witness fees. In a 6-1 decision, written by Justice Beier, the court ruled that expert witness fees were not recoverable as costs in post-award medical benefit claims. Justice Johnson dissented. He would award the costs, citing public policy reasons behind the act which authorized the payment of attorney fees and certain other costs.

The background to the case was straightforward. John Higgins injured his back while working for Abile Machine Inc, and received workmans comp for the injury and two post-award medical treatments (i.e. further medical attention necessitated by the original incident, where the treatment happened after the settlement of the original case). In the second of these, he sought reimbursement of approximately $1000 in expert witness fees for the testimony of two doctors. He cited the law which provides for this which lists ‘witness fees’ as one of the allowable costs that can be awarded to the claimant, and which also states that its list of allowed costs is non-exclusive.

The Administrative Law Judge (ALJ) denied the application, ruling that he could not award expert witness fees as costs. The Workers Compensation Board affirmed the ALJ (with one dissent) and the Court of Appeals affirmed the Board with one dissent. Now the Kansas Supreme Court affirms the Court of Appeals, with one dissent.

The ruling of the Court turns on the legislative intent in writing the clause at issue. Justice Beier notes that the plain wording of the statute (“witness fees”) seems to imply that expert witness fees would be covered, but goes on to state that when read in the light of the act as a whole it does not, since the legislature separately defined ‘witness fees’ as having the same meaning as under civil proceedings, where expert witness fees are excluded. The Court also rejected the notion that expert witness fees should be incorporated at the discretion of the ALJ (thanks to the list of costs being non-exclusive) because expert witness fees are sizeable and more akin to attorneys fees which while award-able as costs are treated separately in the act. The Court rules that had the legislature intended to make expert witness fees able to be awarded as costs it would have said so.

Justice Johnson dissented. He agreed with the majority that the court should not “be seduced by emotionally compelling arguments, in contravention of a strict application of the law” but at the same time would have held that the public policy argument behind the act should be used to construe its meaning. The public policy behind awarding attorneys fees and (some) costs is to lower the financial bar to entry, so that justified claimants are not deterred from seeking compensation. The other purpose is to encourage those who have a liability under workmans comp to honor it. Justice Johnson argues that both of these would be served by the award of expert witness fees in cases where the employer was not consciously trying to comply with the law.

Decision: Double M Construction v. Kansas Corporation Commission

February 11, 2009

February 6th. The Kansas Supreme Court has issued its decision in Double M Construction v. Kansas Corporation Commission (No. 100,312). In a unanimous opinion, written by Justice Rosen, the Court upheld the Commission’s imposition of a $25,000 fine upon Double M for failing to follow the law that governs excavations near underground gas lines. Note: this case was argued while Chief Justice McFarland was still a member of the court. She was recused from the case and her place taken by Judge Melissa Standridge of the Court of Appeals.

A company called Double J Pipeline subcontracted some Labette County excavation work to Double M Construction, an Oklahoma-based firm. Under the contract between the two companies  Double M was not to be responsible for any damage to underground utilities. Double J called the Kansas One Call system to notify of intent to excavate and arrange for underground lines to be marked, as required under the Kansas Underground Utility Damage Prevention Act (KUUDPA). Due to an error, the wrong area was marked by Kansas One Call. Double J called again and Kansas One Call arranged to mark the correct area. Before Kansas One Call had done so Double J directed Double M to begin digging the unchecked area. Double M struck a gas line and a worker was killed. The Kansas Corporation Commission assessed a $25,000 penalty upon Double M for failing to follow the KUUDPA, on the grounds that it states that the excavator must notify Kansas One Call of its intent to excavate.

On appeal to the District Court (where the Commission’s verdict was affirmed) and the Kansas Supreme Court, Double M claims that it was not liable for the failure to notify Kansas One Call, and the events that followed because that was Double J’s responsibility under its contract. It also argued that even if the statute applied to it, that this interfered with its right to contract which is protected under the Due Process clause of the Fourteenth Amendment. Double M also argued that the law was inequitable since as an Oklahoma company it was unaware of it, and argued that at common law liability rests with the main contractor and not the subcontractor(s).

The Court rejected all these arguments. It notes that its ruling is driven by the plain language of the KUUDPA which (apart from an exception for private home owners on their own property) requires that any excavator notify Kansas One Call. Since Double M was an excavator under the meaning of the act, it and no one else, was required to make the phone call. Since it did not do that it is liable. Double M’s argument about common law liability is rejected since the legislature can override common law by statute, and therefore that is inapplicable. Double M’s argument about the law being inequitable is rejected since all persons are presumed to know the law: ignorance is not a defense. Finally, Double M’s Constitutional argument (which seems to have been based on Lochner-era concepts) is rejected: the legislature has the right to pass laws which govern what contracts may legally be signed. If that were not enough, it notes that the contract was entered into after the passage of the act. Freedom of Contract does not extend to being able to enter into a contract that rewrites the law.

Justice Rosen has fun with all this with the following quip:

“Double M would have this court find that a corporation that specializes in excavation, enters into a contract to excavate, and then carries out an excavation is not really an excavator under the statute. It proposes that a creature that looks like a duck, walks like a duck, and quacks like a duck is not a duck if it contracts with a goose to assume the duties and liabilities of a duck.”

Having rejected all of Double M’s argumencts, the Court affirms the Corporation Commission’s ruling, noting that because Double M did not follow the plain, unambiguous wording of the law and do the Kansas One Call notifications itself an accident resulting in property damage and death occurred: precisely what the law was enacted to prevent.

Decision: Friedman v. State Board of Healing Arts

January 16, 2009

January 16th. The Kansas Supreme Court has issued its opinion in Friedman v. State Board of Healing Arts (No. 100564). In a unanimous opinion, authored by Justice Johnson, the Court dismissed the appeal of a Dr Amir Friedman against the Shawnee District Court’s decision not to issue an injunction against the State Board of Healing Arts in its attempt to revoke his medical license. Friedman had argued that since he no longer lived in Kansas and no longer held a Kansas medical license that the Board lacked jurisdiction to hear his case. Chief Justice McFarland and Justice Davis did not take part in the case, their places being filled by Court of Appeals judges Hill and Larson.

Friedman, who now lives in New Jersey, where he continues to practice medicine faces a petition from the Board to have his license revoked for three counts of unprofessional conduct, one count of falsifying a medical record, and one count of surrendering hospital medical privileges while under hospital investigation. Friedman allowed his license to elapse on June 30th 2006, and the charges were brought on July 31st of that year. Friedman filed a motion to dismiss the case against him, citing his move to New Jersey. This motion was denied by an Administrative Law Judge (ALJ) in January of 2008, and the ALJ further ordered that Friedman make preparations for the hearing of the case proper. Friedman next sought an injunction in District Court to block the ALJ’s motion and the Board’s proceedings. The District Court dismissed his motion on the grounds that it was not an appeal of a finalized administrative action. It further found that the Board of Healing Arts did have jurisdiction since it filed the case on the final day of a 30 day window that Friedman had to renew his lapsed license. The District Court held that it was able to make this decision to the extent that the injunction was considered an independent action to the underlying case.

In dismissing Friedman’s appeal the Kansas Supreme Court makes two decisions. First, it holds that the District Court was correct in refusing the injunction. The statute governing the Board of Healing Arts explicitly states that Judicial Review is unavailable until after the completion of any proceedings, except where its postponement would result in harm disproportionate to the public benefit of waiting. Since the proceedings were incomplete, and since Friedman was still practicing medicine and made no attempt to show any disproportionate harm he had suffered his injunction attempt and appeal are barred on jurisdictional grounds. The second holding was that the District Court should not have ruled on the merits of the Board of Healing Arts jurisdiction. The Supreme Court rules that the injunction Friedman sought was not an independent action since he sought to achieve the same end as the barred judicial review: reversal of the ALJ’s decision. Calling the attempt to seek judicial review something else was not enough.