History: L. 1984, ch. 338, § 1; L. 2009, ch. 109, § 23; July 1.
(a) "Agency" means a state agency.
(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.
(c) "Agency head" means an individual or body of individuals in whom the ultimate legal authority of the agency is vested by any provision of law.
(d) "License" means a franchise, permit, certification, approval, registration, charter or similar form of authorization required by law.
(e) "Order" means an agency action of particular applicability that determines the legal rights, duties, privileges, immunities or other legal interests of one or more specific persons.
(f) "Party to agency proceedings," or "party" in context so indicating, means:
(1) A person to whom the agency action is specifically directed; or
(2) a person named as a party to any agency proceeding or allowed to intervene or participate as a party in the proceeding.
(g) "Party to judicial review or civil enforcement proceedings," or "party" in context so indicating, means:
(1) A person who files a petition for judicial review; or
(2) a person named as a party in a proceeding for judicial review or civil enforcement or allowed to participate as a party in the proceeding.
(h) "Person" means an individual, partnership, corporation, association, political subdivision or unit thereof, or public or private organization or entity of any character, and includes another agency.
(i) "Rule and regulation" means a standard, statement of policy or general order, including amendments or revocations thereof, of general application and having the effect of law, issued or adopted by an agency to implement or interpret legislation enforced or administered by such agency or to govern the organization of procedure of such agency.
(j) "Rulemaking" means the process for formulation and adoption of a rule and regulation.
(k) "State agency" means 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.
History: L. 1984, ch. 338, § 2; L. 1986, ch. 318, § 1; July 1.
(b) This act creates only procedural rights and imposes only procedural duties. They are in addition to those created and imposed by other statutes.
(c) This act does not apply to agency actions:
(1) Of the Kansas parole board concerning inmates or persons under parole or conditional release supervision;
(2) concerning the management, discipline or release of persons in the custody of the secretary of corrections;
(3) concerning the management, discipline or release of persons in the custody of the commissioner of juvenile justice;
(4) under the election laws contained in chapter 25 of the Kansas Statutes Annotated, and amendments thereto, except as provided by K.S.A. 25-4185, and amendments thereto;
(5) concerning pardon, commutation of sentence, clemency or extradition;
(6) concerning military or naval affairs other than actions relating to armories;
(7) governed by the provisions of the open records act and subject to an action for enforcement pursuant to K.S.A. 45-222, and amendments thereto;
(8) governed by the provisions of K.S.A. 75-4317 et seq., and amendments thereto, relating to open public meetings, and subject to an action for civil penalties or enforcement pursuant to K.S.A. 75-4320 or 75-4320a, and amendments thereto; or
(9) concerning the civil commitment of sexually violent predators pursuant to K.S.A. 59-29a01 et seq., and amendments thereto.
History: L. 1984, ch. 338, § 3; L. 1986, ch. 318, § 2; L. 1988, ch. 369, § 7; L. 2005, ch. 9, § 1; L. 2009, ch. 109, § 24; July 1.
History: L. 1984, ch. 338, § 4; July 1.
History: L. 1984, ch. 338, § 5; Repealed, L. 2009, ch. 109, § 29; July 1.
History: L. 1984, ch. 338, § 6; L. 1986, ch. 318, § 3; July 1.
(b) For purposes of this section and K.S.A. 77-608:
(1) "Final agency action" means the whole or a part of any agency action other than nonfinal agency action;
(2) "Nonfinal agency action" means the whole or a part of an agency determination, investigation, proceeding, hearing, conference or other process that the agency intends or is reasonably believed to intend to be preliminary, preparatory, procedural or intermediate with regard to subsequent agency action of that agency or another agency.
History: L. 1984, ch. 338, § 7; July 1.
(a) It appears likely that the person will qualify under K.S.A. 77-607 for judicial review of the related final agency action; and
(b) postponement of judicial review would result in an inadequate remedy or irreparable harm disproportionate to the public benefit derived from postponement.
History: L. 1984, ch. 338, § 8; July 1.
(1) A statute specifically provides for review of an agency action by appeal directly to the court of appeals; or
(2) otherwise provided by law.
(b) Except as otherwise provided by K.S.A. 8-259, 31-144, 44-556, 72-5430a and 74-2426, and amendments thereto, venue is in the county in which the order or agency action is entered or is effective or the rule and regulation is promulgated.
History: L. 1984, ch. 338, § 9; L. 1986, ch. 318, § 4; July 1.
History: L. 1984, ch. 338, § 10; L. 1986, ch. 318, § 5; July 1.
(a) A person to whom the agency action is specifically directed;
(b) a person who was a party to the agency proceedings that led to the agency action;
(c) if the challenged agency action is a rule and regulation, a person subject to that rule; or
(d) a person eligible for standing under another provision of law.
History: L. 1984, ch. 338, § 11; July 1.
(a) A petitioner for judicial review of a rule or regulation need not have participated in the rulemaking proceeding upon which that rule and regulation is based, or have petitioned for its amendment or repeal;
(b) a petitioner for judicial review need not exhaust administrative remedies to the extent that this act or any other statute states that exhaustion is not required;
(c) a petitioner for judicial review need not seek reconsideration unless a statute makes the filing of a petition for reconsideration a prerequisite for seeking judicial review; and
(d) the court may relieve a petitioner of the requirement to exhaust any or all administrative remedies to the extent that the administrative remedies are inadequate or would result in irreparable harm.
History: L. 1984, ch. 338, § 12; L. 1995, ch. 175, § 9; L. 2009, ch. 109, § 25; July 1.
(a) A petition for judicial review of a rule and regulation may be filed at any time, except as otherwise provided by law.
(b) If reconsideration has not been requested and is not a prerequisite for seeking judicial review, a petition for judicial review of a final order shall be filed within 30 days after service of the order.
(c) Except as provided in K.S.A. 77-631, if reconsideration has been requested or is a prerequisite for seeking judicial review, a petition for judicial review of a final order shall be filed: (1) Within 30 days after service of the order rendered upon reconsideration, unless a further petition for reconsideration is required under K.S.A. 66-118b and amendments thereto; (2) within 30 days after service of an order denying the request for reconsideration; or (3) in proceedings before the Kansas corporation commission, within 30 days of the date the request for reconsideration is deemed to have been denied.
(d) A petition for judicial review of agency action other than a rule and regulation or final order shall be filed within 30 days after the agency action, but the time is extended:
(1) During the pendency of the petitioner's timely attempts to exhaust administrative remedies; and
(2) during any period that the petitioner did not know and was under no duty to discover, or did not know and was under a duty to discover but could not reasonably have discovered, that the agency had taken the action or that the agency action had a sufficient effect to confer standing upon the petitioner to obtain judicial review under this act.
(e) Service of an order, pleading or other matter shall be made upon the parties to the agency proceeding and their attorneys of record, if any, by delivering a copy of it to them or by mailing a copy of it to them at their last known addresses. Delivery of a copy of an order, pleading or other matter means handing it to the person being served or leaving it at that person's principal place of business or residence with a person of suitable age and discretion who works or resides therein. Service shall be presumed if the presiding officer, or a person directed to make service by the presiding officer, makes a written certificate of service. Service by mail is complete upon mailing. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after service of an order, pleading or other matter and it is served by mail, three days shall be added to the prescribed period. Unless reconsideration is a prerequisite for seeking judicial review, a final order shall state the agency officer to receive service of a petition for judicial review on behalf of the agency.
History: L. 1984, ch. 338, § 13; L. 1986, ch. 318, § 6; L. 1995, ch. 175, § 10; July 1.
(b) A petition for judicial review shall set forth:
(1) The name and mailing address of the petitioner;
(2) the name and mailing address of the agency whose action is at issue;
(3) identification of the agency action at issue, together with a duplicate copy, summary or brief description of the agency action;
(4) identification of persons who were parties in any adjudicative proceedings that led to the agency action;
(5) facts to demonstrate that the petitioner is entitled to obtain judicial review;
(6) the petitioner's reasons for believing that relief should be granted; and
(7) a request for relief, specifying the type and extent of relief requested.
(c) Failure to include some of the information listed in subsection (b) in the initial petition does not deprive the reviewing court of jurisdiction over the appeal. Leave to supplement the petition with omitted information required by subsection (b) shall be freely given when justice so requires.
(d) Within 30 days after service on the agency or notice to other parties of the petition as provided in K.S.A. 77-615, and amendments thereto, a party to judicial review proceedings may file an answer or other responsive pleading and shall serve a copy of any such answer or pleading in the manner provided by subsection (e) of K.S.A. 77-613, and amendments thereto, upon all parties to the proceedings.
(e) In any method of serving process, substantial compliance shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that the petition or appeal had been filed.
History: L. 1984, ch. 338, § 14; L. 1986, ch. 318, § 7; L. 1995, ch. 175, § 11; L. 2009, ch. 109, § 26; July 1.
(b) The petitioner shall give notice of the petition for judicial review to all other parties in any adjudicative proceedings that led to the agency action.
History: L. 1984, ch. 338, § 15; L. 1986, ch. 318, § 8; L. 1995, ch. 175, § 12; July 1.
(b) A party may file a motion in the reviewing court, during the pendency of judicial review, seeking interlocutory review of the agency's action on an application for stay or other temporary remedies.
(c) If the agency has found that its action on an application for stay or other temporary remedies is justified to protect against a substantial threat to the public health, safety or welfare, the court may not grant relief unless it finds that:
(1) The applicant is likely to prevail when the court finally disposes of the matter;
(2) without relief the applicant will suffer irreparable injury;
(3) the grant of relief to the applicant will not substantially harm other parties to the proceedings; and
(4) the threat to the public health, safety or welfare relied on by the agency is not sufficiently serious to justify the agency's action in the circumstances.
(d) If subsection (c) does not apply, the court shall grant relief if it finds, in its independent judgment, that the agency's action on the application for stay or other temporary remedies was unreasonable in the circumstances.
(e) If the court determines that relief should be granted from the agency's action on an application for stay or other temporary remedies, the court may remand the matter to the agency with directions to deny a stay, to grant a stay on appropriate terms or to grant other temporary remedies, or the court may issue an order denying a stay, granting a stay on appropriate terms or granting other temporary remedies. As used in this subsection, "appropriate terms" may include requirement of a bond.
(f) Except as otherwise authorized by rule of the supreme court, the court shall not issue any ex parte order pursuant to this section.
(g) This section shall not apply to proceedings under K.S.A. 66-118g through 66-118k, and amendments thereto.
History: L. 1984, ch. 338, § 16; July 1.
(a) The agency did not have jurisdiction to grant an adequate remedy based on a determination of the issue;
(b) the agency action subject to judicial review is a rule and regulation and the person has not been a party in adjudicative proceedings which provided an adequate opportunity to raise the issue;
(c) the agency action subject to judicial review is an order and the person was not notified of the adjudicative proceeding; or
(d) the interests of justice would be served by judicial resolution of an issue arising from:
(1) A change in controlling law occurring after the agency action; or
(2) agency action occurring or first reasonably knowable to the person after the person exhausted the last feasible opportunity for seeking relief from the agency.
History: L. 1984, ch. 338, § 17; L. 1987, ch. 184, § 4; L. 2009, ch. 109, § 27; July 1.
(a) Orders of the director of workers' compensation under the workmen's compensation act shall be in accordance with K.S.A. 44-556 and amendments thereto;
(b) orders of the Kansas human rights commission under the Kansas act against discrimination or the Kansas age discrimination in employment act shall be in accordance with K.S.A. 44-1011 and 44-1021 and amendments thereto;
(c) orders of the division of vehicles, other than orders under K.S.A. 8-254, and amendments thereto, which deny, cancel, suspend or revoke a driver's license shall be in accordance with K.S.A. 8-259 and amendments thereto;
(d) orders of the secretary of labor under K.S.A. 72-5413 through 72-5431, and amendments thereto, shall be in accordance with K.S.A. 72-5430a and amendments thereto; and
(e) orders of the state fire marshal under K.S.A. 31-144, and amendments thereto, shall be in accordance with that section.
History: L. 1984, ch. 338, § 18; L. 1985, ch. 308, § 2; L. 1986, ch. 318, § 9; L. 1991, ch. 148, § 12; L. 2004, ch. 179, § 144; July 1.
(1) Improper constitution as a decision-making body; or improper motive or grounds for disqualification, of those taking the agency action; or
(2) unlawfulness of procedure or of decision-making process.
(b) The court may remand a matter to the agency, before final disposition of a petition for judicial review, with directions that the agency conduct fact-finding and other proceedings the court considers necessary and that the agency take such further action on the basis thereof as the court directs, if:
(1) The agency was required to base its action exclusively on a record of a type reasonably suitable for judicial review, but the agency failed to prepare or preserve an adequate record;
(2) the court finds that (A) new evidence has become available that relates to the validity of the agency action at the time it was taken, that one or more of the parties did not know and was under no duty to discover, or did not know and was under a duty to discover but could not reasonably have discovered until after the agency action, and (B) the interests of justice would be served by remand to the agency;
(3) the agency improperly excluded or omitted evidence from the record; or
(4) a relevant provision of law changed after the agency action and the court determines that the new provision may control the outcome.
History: L. 1984, ch. 338, § 19; July 1.
(b) If part of the record has been preserved without a transcript, the agency shall prepare a transcript for inclusion in the record transmitted to the court, except for portions that the parties stipulate to omit in accordance with subsection (c). Unless otherwise ordered by the court, the cost of the preparation of the transcript shall be paid by the appellant.
(c) By stipulation of all parties to the judicial review proceedings, the record may be shortened, summarized or organized.
(d) The court may tax the cost of preparing transcripts and copies for the record against a party who unreasonably refuses to stipulate to shorten, summarize or organize the record.
(e) Additions to the record pursuant to K.S.A. 77-619 shall be made as ordered by the court.
(f) The court may require or permit subsequent corrections or additions to the record.
History: L. 1984, ch. 338, § 20; July 1.
(1) The burden of proving the invalidity of agency action is on the party asserting invalidity; and
(2) the validity of agency action shall be determined in accordance with the standards of judicial review provided in this section, as applied to the agency action at the time it was taken.
(b) The court shall make a separate and distinct ruling on each material issue on which the court's decision is based.
(c) The court shall grant relief only if it determines any one or more of the following:
(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
(3) the agency has not decided an issue requiring resolution;
(4) the agency has erroneously interpreted or applied the law;
(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
(8) the agency action is otherwise unreasonable, arbitrary or capricious.
(d) For purposes of this section, "in light of the record as a whole" means that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and amendments thereto, cited by any party that supports such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency's explanation of why the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review.
(e) In making the foregoing determinations, due account shall be taken by the court of the rule of harmless error.
History: L. 1984, ch. 338, § 21; L. 2009, ch. 109, § 28; July 1.
(b) The court may grant other appropriate relief, whether mandatory, injunctive or declaratory; preliminary or final; temporary or permanent; equitable or legal. In granting relief, the court may order agency action required by law, order agency exercise of discretion required by law, set aside or modify agency action, enjoin or stay the effectiveness of agency action, remand the matter for further proceedings, render a declaratory judgment or take any other action that is authorized and appropriate.
(c) The court may also grant necessary ancillary relief to redress the effects of official action wrongfully taken or withheld, but the court may award attorney's fees or witness fees only to the extent expressly authorized by other law.
(d) If the court sets aside or modifies agency action or remands the matter to the agency for further proceedings, the court may make any interlocutory order it finds necessary to preserve the interests of the parties and the public pending further proceedings or agency action.
History: L. 1984, ch. 338, § 22; July 1.
History: L. 1984, ch. 338, § 23; July 1.
(b) The petition shall name, as defendants, each alleged violator against whom the agency seeks to obtain civil enforcement.
(c) A party to an agency hearing may seek enforcement of a subpoena, discovery order or protective order by filing a petition for civil enforcement in the district court. The petition shall name, as defendants, each person against whom the party seeks to obtain civil enforcement.
(d) Venue shall be in the county:
(1) In which the order is entered or the rule and regulation is promulgated; or
(2) determined in the manner provided for determination of venue in other civil cases.
(e) A petition for civil enforcement may request, and the court may grant, declaratory relief, temporary or permanent injunctive relief, any other civil remedy provided by law or any combination of the foregoing.
History: L. 1984, ch. 338, § 24; L. 1989, ch. 283, § 8; July 1.
(a) The rule and regulation or order does not apply to the party;
(b) the party has not violated the rule or order;
(c) the party has violated the rule and regulation or order but has subsequently complied, but a party who establishes this defense is not necessarily relieved from any sanction provided by law for past violations; or
(d) any other defense allowed by law.
History: L. 1984, ch. 338, § 25; July 1.
History: L. 1984, ch. 338, § 26; July 1.
History: L. 1984, ch. 338, § 27; July 1.
(b) If an agency, not including the Kansas corporation commission, does not act on a petition for reconsideration within the time prescribed by K.S.A. 77-529, and amendments thereto, a party may petition for judicial review of the final order at any time within 90 days of service of such final order. If prior to the filing of a petition for judicial review under this subsection, the agency grants the petition for reconsideration, the time for seeking judicial review of an order rendered upon such reconsideration shall be governed by subsection (c) of K.S.A. 77-613, and amendments thereto.
(c) This section shall be part of and supplemental to the act for judicial review and civil enforcement of agency actions.
History: L. 1995, ch. 175, § 1; July 1.