Karns v. Kansas State Board of Agriculture

Brazil, C.J.,

concurring: I agree with the majority’s reasoning under Issues I and III and with the ultimate disposition of the case. I write separately to voice my disagreement with the majority’s reasoning under Issue II.

*750I disagree with the majority’s conclusion that the petition for judicial review is not jurisdictional. In particular, I believe that the failure to comply with the pleading requirements set forth in the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., when petitioning for judicial review cause a litigant’s statutorily granted right of appeal to close. However, because I believe that Kams adequately amended his deficient petition within the appeal time, I would also hold that the district court properly exercised jurisdiction over the appeal.

The majority relies upon University of Kansas v. Department of Human Resources, 20 Kan. App. 2d 354, 887 P.2d 1147 (1995), for support. As the majority indicates, the holding in that case essentially adopts the standard of notice pleading found under the general civil code for the review of agency decisions. In my view, notice pleading is not the appropriate standard for appeals under the KJRA and, therefore, I believe University of Kansas v. Department of Human Resources was wrongly decided.

In forming its holding, the University of Kansas v. Department of Resources court noted that there are no Kansas cases which address this issue. The court then analogized cases under Chapter 60 which indicate that a failure to plead with specificity is not considered a jurisdictional defect. The inherent problem with such an analogy, however, is that the very issue involved is whether, pursuant to the KJRA’s directive, administrative agency actions are to employ the same pleading procedures as general civil cases.

The issue is essentially one of statutory construction. The KJRA established the exclusive means of judicial review of agency action. K.S.A. 77-606. The requirements for a petition for judicial review under the KJRA are contained at K.S.A. 1995 Supp. 77-614:

“(a) A petition for judicial review shall be filed with the clerk of the court.
“(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;
*751(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) 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.”

In Professor Ryan’s authoritative analysis of the KJRA, he states the following about the KJRA’s petition for judicial review:

“Obviously, the KJRA contemplates a petition that goes beyond the simple ‘notice’ petition which was conceptually the cornerstone of the new Code of Civil Procedure a few decades ago in this state. The reason is quite simple. By having a universal remedy that is universally available under one form of action no matter what type of agency action is challenged, the petition itself becomes significant in terms of identifying the type of agency action challenged. It is important to know whether the agency action is basically a rule challenge or is appeal of a specific order. One reason is critical. The timeliness for filing the different types are significantly different .... In addition, because the remedies under K.S.A. 77-622 constitute the broad range of all remedies conceptually available, then the kind of agency action complained of need be identified as well as the kind of relief requested. In other words, specificity in pleading is necessary to provide a more manageable framework for processing the petition within this ‘universal’ appeal structure.” Ryan, The New Kansas Administrative Procedure and Judicial Review Acts, 54 J.K.B.A. 53, 67 (1985).

As Professor Ryan’s analysis indicates, specificity in pleading under the KJRA is necessary to give focus to the asserted agency error and to give the reviewing court a proper understanding of the type of relief sought.

Although different, the petition for judicial review under the KJRA serves a similar function to the notice of appeal in general civil cases. In such cases, it has long been the rule that our appellate courts lack jurisdiction to consider rulings which are not identified in the notice of appeal. See Hess v. St. Francis Regional Med. Center, 254 Kan. 715, Syl. ¶ 1, 869 P.2d 598 (1994); State v. Marble, 21 Kan. App. 2d 509, 519, 901 P.2d 521, rev. denied 258 Kan. 861 (1995).

Unfortunately, Kams’ petition for review was bereft of any meaningful “reasons for believing that relief should be granted,” *752K.S.A. 1995 Supp. 77-614(b)(6), aside from a general allegation that the Board lacked jurisdiction or authority to enter an order in the matter. In my view, Kams’ failure to specify any other reasons why the district court should grant him relief would, normally, render the district court without jurisdiction to consider any issues beyond the jurisdictional issue raised.

However, the facts in the present case show that, ultimately, Kams did comply with the requirement of specificity in pleading. At the March 23, 1994, hearing, Kams made both the KSBA and the reviewing court aware that he was challenging the sufficiency of the hearing officer’s findings of fact and conclusions of law. Importantly, Kams asserted this claim well before the 30-day time period for filing the petition for judicial review had run from service of the agency’s order of March 4,1994. See K.S.A. 1995 Supp. 77-613. Thus, I would find that Kams sufficiently amended his petition for judicial review through his oral averments at the March 23 hearing and, therefore, the court had jurisdiction to consider the sufficiency of the agency’s order.