*1 99,791 No. al., et and Lavelle Appellants, Salina, Frick, Ben J. Kansas, A Corporation, Appellee. Municipal 739) (208 P.3d *2 filed Opinion June 2009. Borich, cause, Patterson, III, Leawood, R. Joseph argued Douglas J. Leawood, was with him on the briefs for appellants. Park, L.L.P., cause, Frier, Orrick, & of Overland B. Foth argued Jason Orrick, firm, same were with him P. Orrick and and Timothy Anthony J. brief appellee. of the court delivered by opinion us to determine the standard This appeal requires Luckert, J.: when to be a district court of review considering relocation benefits under Kan- from determination of *3 appeal for of Assistance Persons sas Relocation by Acquisition Displaced Act). Act, (Kansas K.S.A. 58-3501 The district Real etseq. Property the owners’ that K.S.A. court displaced property argument rejected 58-3509(a), court shall which to the district provides “appeal novo,” a trial entitled them to a new trial and determined the de a limited of review of doctrine separation powers required scope if examiner’s determination of benefits considered the hearing was evidence. substantial competent supported in the
We the district court erred narrow conclude applying if an a review that is makes ad- of applicable purely scope Here, ministrative decision. the examiner a ju- performed Nevertheless, in dicial which a court can review de novo. function al- which have cases similar statutory prior addressing provisions decision, de on from an administrative lowed a trial novo this has held that the district court should make independent of law on the record before of fact and conclusions based findings this we reverse the the administrative agency. Applying precedent, for this standard decision and remand of district court’s application of review. and Procedural
Facts Background The of Salina undertook project, public improvement gen- City the Ohio Street referred as North Improvement Project erally (the which involved the reconstruction of North Ohio Project), Street, the construction of over the Union Pacific railway bridge lines, and of and reconstruction side redesign appurtenant roads. This real City Project required acquire property Frick, Ben and which Lavelle tire Fricks retail operated large that housed numerous After businesses. unsuccessful ne- complex for the of the gotiations purchase property, City acquired of eminent domain. property through power Court-appointed awarded the Fricks for die appraisers just compensation property, after which the Fricks The was later dismissed appealed. mutual of the agreement parties.
Meanwhile, the advised the Fricks of City general eligibility and for for relocation benefits requirements procedures obtaining their The businesses. and the Kansas displaced City Department (KDOT) had entered into Transportation agreement and in governed Project provided, part, City costs, duties, KDOT would share the associ- responsibilities will, ated with all that “it aspects Project. City agreed name, its condemnation, own dedication or acquire by purchase, easements and access to com- rights way, necessary rights” no federal allocated to plete Project. Although funding and KDOT that the Kansas Sec- Project, mutally agreed would relocation assistance retary Transportation provide as defined the federal Uniform As- Relocation persons eligible Act (Federal Act), sistance Amendments 42 U.S.C. 4601 § (2006), et accordance with our state seq. counterpart, Act, Kansas et 58-3501 seq.
The Federal Act and its federal implementing regulations, are to minimize the of adverse designed impact displacement, ap- in situations where the is a direct of result ply only displacement or undertaken or federal with fed- programs projects by agency eral financial 4621(a)(1) assistance. 42 U.S.C. The Kansas § Act was established order to with F the ederal Act. K.S.A. comply 58-3502 provides part: Kansas, “Whenever or is undertaken the of any state program by project any thereof, or subdivision political under which federal financial assistance
will . be available . . and which or will result in the program project displace- state, . the or real . . agency, ment of any by acquisition property person subdivision may: political “(1) assistance to or for fair reasonable relocation and Provide and payments .... persons displaced as
“(4) owners for specified reimburse necessary expenses pay property in . . . the federal act.” case, the to these this meet parties
Attempting requirements relocation benefits. in extensive negotiations regarding participated relocation examined the Fricks’ A team of relocation specialists to determine benefits which on behalf of the toCity any process The Fricks’ for relocation ben- were entitled. the Fricks requests two divided into main efits were categories Category eventually — II consisted I of move-out consisted expenses Category largely and reconnection of reestablishment expenses. largely re- to obtain information on the After with the Fricks working businesses, the the Fricks for their various location costs City paid site, i.e., the from the for the relocation of the personal property Fricks, The dissatisfied with I move-out expenses. Category an administrative of tire amount requested payment, appealed 58-3509, in- selected an K.S.A. As hearing. required de- examiner conduct a review the City’s hearing dependent termination of relocation benefits. After the hearing eligible benefits, conducted, the Fricks II timely City paid Category award, was conducted. Follow- that and second hearing appealed administrative examiner issued each sep- hearing, ing that in awards made arate decisions large part upheld City. decisions to the district
The Fricks both administrative appealed start, court, were From the cases consolidated. parties the district about the standard of review to applied by disagreed that because the court. Fricks contended plain language “shall be 58-3509 states that an district court benefits, were en- a trial de novo” on the issue relocation they trial on the of the issue. The titled to a anew merits City argued Act for Review and the Civil Enforcement Kansas Judicial and, K.S.A. 77-601 et controls Actions seq., (KJRA), Agency *5 6
therefore, review ad- the district court’s had to be limited the- ministrative record. 6,2006, court
The district issued an order on September finding that “under either of remains review statutory authority scope same; i.e., the court should review the record before essentially lawful, if the determine decision is [examiner] hearing sup- evidence, reasonable, by [not] ported arbitrary capri- ruled, however, cious.” The the Fricks that would be per- mitted to additional evidence relevant to the issue of “fair present and reasonable relocation and assistance” as payments provided 58-3502(1). The district court further determined that the does not to this case because the condemning agency KJRA and cities, Salina, is the of defi- authority appointing nition, as state, subdivision of tire are not in included political Nevertheless, on Kansas case coverage relying KRJA. the district court held that because Fricks precedent, sought action, of review an administrative the court’s of review was scope in Health, 721, limited of v. State Board light Rydd 4, 451 P.2d In this court held that the Syl. ¶ Rydd, doctrine from im- separation powers prohibits “the function of a trial de novo actions upon judiciary posing of an administrative in the sense the court agency authorizing to substitute its for that of the administrative judgment matters than other law or matters.” 202 Kan. at essentially judicial court, therefore, 729. The district the term “trial de interpreted novo” K.S.A. 58-3509 to mean a limited review of the admin- istrative record. trial,
Before the Fricks filed their witness and exhibit lists which identified 24 witnesses and numerous exhibits. also served They and a broad for the of 27 doc- interrogatories request production uments. The a motion the district City responded by filing asking court to its order. After clarify September conducting at which the their argued parties positions regarding of review and the the district court scope scope discovery, motion to and modified its order. granted City’s clarify previous The district judge acknowledged September order, “I to have it both make trying ways, everybody happy, *6 ... was not admin- can’t do that. It and often strictly you very review, did for such other evi- Court allow because the istrative I hear. ... I think was to dence as be wrong necessary might 19,2007, the entered its modified order that.” On June the record with from the Fricks supplementing prohibited fair and reasonable relevant to the issue of “additional evidence as K.S.A. 58- and assistance relocation benefits by provided 3502(1).” and the ex- the district court reviewed transcripts
Subsequently, and die administrative concluded hibits of hearing hearings in both written decisions were examiner’s and conclusions findings law, and the fed- evidence substantial including supported busi- eral to relocation benefits displaced regulations applicable the district court affirmed both decisions of nesses. Consequendy, examiner, to the denied additional relocation benefits hearing Fricks, the examiner’s decisions into reference incorporated order. court’s and filed a to transfer their
The Fricks motion appealed court; motion to this was granted.
Analysis that when ad- Before us Fricks contend they appealed relocation ben- ministrative examiner’s decisions regarding merits, efits, were a trial on with entitled receive new they witnesses, new and in- to conduct call discovery, opportunity not in the administrative record. troduce evidence included They their assert that district court erred refusing requests of its review. Mmiting scope
A. Standard Review should
Determination of the issue of what standard
review
be
a district court in an
from an administrative hear
applied by
in
relocation benefits
examiner’s decision
requires
ing
regarding
of statutes
of the Kansas Act.
presents
Interpretation
terpretation
unlimited
exercise
of law over which
courts
question
appellate
625, 629, 176
Revenue, 285 Kan.
review. Martin v. Kansas Dept. (2008);
Restaurants,
P.3d 938
LSF
Franchise REO I Emporia
Inc.,
(2007).
Kan.
When a court is
called
the intent of
upon
interpret
if that intent
can
ascertained. The
governs
leg
is
islature
to have
its intent
the lan
presumed
expressed
through
G.L.V.,
it enacted. In re
286 Kan.
1040-
guage
41,
Adoption of
(2008).
reason,
For this
when the
aof
language
statute is
courts
not
“need
resort to stat
plain
unambiguous,
K.M.H.,
53, 79, 169
re
construction.” In
P.3d 1025
utory
(2007),
cert. denied
These must rules be to the statutes applied governing pro- cedures relocation benefits in order to determine determining intent the standard of review legislature’s regarding applicable to of an administrative examiner’s decision. appeals hearing B. The Kansas Act Act,
Under the Kansas must deter- condemning authority mine the fair and reasonable relocation benefits that conform to in the Federal Act and notice of the benefits to guidelines provide K.S.A. 58-3508. Within 60 of displaced person. days receiving benefits, notice of the determination of such any displaced person to entitled relocation “state, benefits to the or may appeal subdivision.” state, K.S.A. 58-3509. The or political agency, polit- ical subdivision must an examiner” appoint “independent hearing to render a decision on the K.S.A. 58-3509. appeal.
The statutes do not outline the be to in the procedure but administrative fill the See K.A.R. 36- hearing, regulations gap. 16-1 et Under the examiner must seq. regulations, hearing pro- vide at least 10 notice of a K.A.R. 36-16-6. The days’ hearing. reg- a record be made also ulations hearing, require a as to in such manner is to “conducted give appellant 36-16-7. The be heard relevant issues.” K.A.R. to upon opportunity in terms KDOT’s allow rights, attorney regulations, speaking witnesses, and the introduction of examination representation, evidence. exam- Following hearing, documentary to a make recom- iner is report, prepare findings required mendations, a order proposed containing findings prepare fact of law for the and conclusions approval Secretary K.A.R. 36-16-7. KDOT or the Secretary’s designee.
As a final due file process step, person may any displaced court within of the written order. in district “Any days trial on the to the district court shall be a de novo such only 58-3509(a). issue of relocation benefits.” K.S.A. all of real
These also acquisitions property requirements if are a federal or KDOT funds used county, city township, road, 58- for a or street. See K.S.A. acquire property highway, 3502; 58-3503; 58-3506; K.A.R. 36-16-21. K.A.R. 36- K.S.A. 16-21(b) that KDOT will administer the relocation funds specifies and the as otherwise between “except agreed department gov- ernmental involved.” entity the due
These person process procedures provide displaced trial, See associated with record. Kempke including typically *8 Revenue, 770, 776, 133 (2006); Kansas 281 104 Kan. P.3d Dept. of Willis, 683, 685, 573 v. (1977); 2d Windholz Kan. P.2d 1100 App. 20-302b(c) K.S.A. distinction between “civil (making necessary cf. of or cases where a record was made the action before proceeding the be the district shall tried [in which] magistrate judge, and and on the record a district determined judge,” appeals trial). have this not without a record which must new Had process the of review would or nature guaranteed, appellate change even be impossible.
C. Trial De Novo Appeal had the
Even Fricks to evidence present though opportunity and a the administrative record examiner review of 58-3509(a) that K.S.A. entitles they argue possible appeal, to a trial owners new with additional witnesses displaced properly and evidence. In this the Fricks on the focus argument, making “trial de novo” and to the of a definition de phrase point “hearing” novo, anew, which is court’s decision of a matter “[a] reviewing no deference to lower A hear- court’s new giving findings. . . . as if conducted had taken not [is] ing original hearing 1999). (7th Black’sLaw In ed. place.” Dictionary response, focuses on word that broad inter- “appeal” argues (1) of tire de novo conflicts with of pretation language provisions (2) the Kansas intent to follow the Federal KJRA, Legislature’s (3) Act and its of regulations, implementing separation powers doctrine, (4) this court’s strict construction of de novo admin- Hence, istrative statutes. we must consider of whether any and, these or so, doctrines if how it influences provisions applies 58-3509(a) our in K.S.A. that states interpretation phrase tire . . . shall abe trial de novo.” “appeal 1. KJRA court, In the district controlled City argued KJRA
and limited the court’s standard of review. the district Although that its of review an administrative action should be agreed limited, it found that the was not under the def- applicable KJRA 77-602(a) initions of K.S.A. 77-602(k) K.S.A. because the City Salina was involved in the current action. 77-602(a)
K.S.A. that under the term provides KJRA, 77-602(k) means “a state “agency” agency.” provides definition of “state agency”: “ officer, bureau, division, board, ‘State means au- any department, commission or thority, institution of this state which is law agency, authorized by administer, enforce or law this state but does not any include interpret any state, thereof, or subdivision or
political or the taxing any agency added.) branch state legislative government.” (Emphasis
This court has reiterated what is contained in this plain statutory not cities, does to the actions coun language ties, —the KJRA See, or other subdivisions of the state. political e.g., Kaplan Comm’rs, Board 122, 125, 3 P.3d County ofJohnson *9 (2000); Park, Landau v. Council Overland City Coffman, (1989); Under the Kansas Procedures Actions, and Civil Act Review Agency Enforcement for Judicial (Feb. 2007). et K.S.A. 77-601 seq., J.K.B.A. this that the should to the contends apply City Regardless, KJRA the Fricks’ businesses resulted the case because displacement KDOT, the and between from a City improvement project joint the State of Kansasunder KDOT is state “department” agency. 75-5001, makes it a state which also Supp. 77-602(k) definition. The the K.S.A. under City argues it to to KDOT and should also would otherwise apply apply KJRA on the de- which as the principal improvement project, City, KDOT and administer relocation cided into the shoes” of to “step benefits. however, under the
What cannot be is that agreement ignored, KDOT, and in the between City City principal all were in the and to be Project rights acquired City’s property KDOT, with this not name. In City, compliance agreement, the Fricks’ was the acquired authority actually condemning Thus, it was the action that caused the relocation property. City’s benefits, incurred, rise to the to and in to be expenses giving right terms, The clear does not actions. district apply city KJRA this not case. concluded that the does apply correctly KJRA 2. Act Federal if the does not contends that limited Even apply, City KJRA should to the district court’s consideration of the ad-
review apply ministrative examiner’s decisions relocation ben- regarding efits of the Kansas intent to follow Fed- because Legislature’s Act, Act itself eral 42 U.S.C. 4601 et While the Federal does seq. § utilized, not in this federal was not case because funding Act, enacted the Kansas that the Kansas parties Legislature agree the Fed- K.S.A. 58-3501 et seq., purpose implementing eral Act Kansas by requiring agencies departments comply with when assis- its relocation providing payments provisions tance. See K.S.A. 58-3501. that al- this another takes step argues concept so, direct to do Act does not courts Kansas
though specifically *10 12 “consistent, harmonious and sensible is that conclusion” intended to of administrative review principles
that have
Act.
been
under
Federal
to the
applied
According
courts,
federal
a denial of
relocation benefits under
Federal
Act is an administrative
that
action
re
agency
may
judicially
(APA),
viewed under the federal Administrative Procedure Act
5
U.S.C. 702 et
See
v.
Starke
U.S.
seq.
§
Secretary,
Dept. of
477,
(W.D.
F.
1976).
454
480
Okla.
Housing,
Supp.
“
APA,
Under the
novo
‘de
review is
where
only
appropriate
there are
fact
in an
inadequate
finding procedures
adjudicatoiy
or where
are
to enforce
judicial
proceeding,
proceedings
brought
certain administrative actions.’
v.Co.
[Citation omitted.]” Kroger
Louisville,
382,
(6th
Auth.
286 F.3d
387
Cir.
Airport
Regional
2002);
(Under
also
see
K.S.A. 77-619
a court
“receive
may
KJRA
evidence, in addition to that
contained
record for
agency
review,
if it relates to the
of the
action
judicial
only
validity
agency
at the
it
time was taken and is needed to decide
issues
disputed
regarding:
[1]
Improper
constitution as a
decision-making body;
or
motive or
for
those
improper
grounds
disqualification,
taking
action;
[2]
unlawfulness of
procedure
or of decision-
making process'”).
“
under the APA
focal
for
review
‘[t]he
Usually,
point
existence,
should be the administrative
record
not some
already
”
new
Co.,
record made
in the
court.’
initially
reviewing
Kroger
Pitts,
142,
F.3d at
411 U.S.
36 L.
Camp
(quoting
[1973]).
APA,
Ed. 2d
standard and that de review novo is available recognition only However, this allowed the APA. circumstances under the limited 58-3509(a), of K.S.A. to the is contrary plain language argument that standard as of review states standard which provides contrast, Act not the Federal does mention de In a “trial novo.” caused some an omission initially uncertainty right appeal, Federal Act committed the rise arguments gave discretion and relocation benefits to the determination of agency’s *11 Starke, See, not to review. decision e.g., judicial subject this ar- F. 477. Federal courts have 454 generally rejected Supp. Co., 286 F.3d the APA and concluded E.g., Kroger applies. gument 387; Starke, (2006) (“A 480; 454 F. at see U.S.C. at § Supp. action, or because of agency adversely suffering legal wrong person action within the of affected or aggrieved by agency meaning thereof.”). statute, is entitled to review relevant judicial Kansas, at framework could have been established same Had was the benefits. the Kan- least when KDOT agency providing lead, it have said could sas followed nothing Legislature Congress’ to district about review or about court. judicial allowing appeal scenario, Under that the standard of review specified KJRA KDOT have to determinations made because would any by to all and all its terms the express pro- by “applies agencies KJRA and civil enforcement of actions for review ceedings judicial statute from K.S.A. not specifically by provisions.” exempted 77-603(a). Furthermore, could have extended evidence of review to all cov- substantial projects competent scope Act, if ered the Kansas even resulted from by displacement state, action subdivision by by political simply restating 77-621(c)(7) 706(2)(E) in K.S.A. and U.S.C. standard found § Yet, the one of those Kansas Legislature incorporating provisions. 58-3509(a), for an specifically allowing appeal adopted to rather such than review judicial stating “[a]ny appeal on issue of relocation district shall be a trial de novo court only of in the APA benefits” rather than the standard review adopting or KJRA. deviated this Kansas clearly process, Legislature
Ry adopting Thus, clear the Federal Act. even there is from expression though federal of intent the Kansas implement Legislature benefits, scheme for relocation there is an clear equally adoption of a different standard of review for an al- the decision benefits. relocation lowing
3. Powers Doctrine Separation of
Next, the novo via true de review a new trial is con City argues doctrine, strained doctrine. Under this separation powers if review, even a statute for de novo this court “has almost provides this doctrine various universally applied separation powers statutes administrative providing appeals purely from tribunals, that the court not substitute its ruling may judgment of fact for that of an administrative tribunal.” questions (Emphasis added.) Co., Inc., Gawith v. & Gage’s Plumbing Heating i.e.,
In such a where tire review is of a purely circumstance — administrative action—the doctrine of re- separation powers review, stricts ato limited form of even reviewing if a statute for de novo review. This narrow standard of provides review a court’s intrusion into an protects against agency’slegisla- *12 tive or executive this Under limited review: powers. “ not, ‘A district court on substitute may its of an appeal, judgment .that tribunal, whether, administrative but is to restricted as a matter of considering law, (1) (2) the tribunal acted or the admin fraudulently, arbitrarily capriciously, evidence, (3) istrative order is and substantially the tribunal’s action supported ” Foundation, was within tire itsof Olathe Inc. v. Ex scope authority.’ Hospital
tendicare, Inc.,
546, 553, 539
(1975)
217 Kan.
P.2d
Kansas State Board
(quoting
Foote,
1,
[1968]).
Arts v.
200 Kan.
Healing
The Fricks do not that district court could disagree properly review whether the tribunal acted or ca- fraudulently, arbitrarily, and some of their bias toward the priciously allegations regarding could fall this standard. Nor do City arguably withing argue they that die district court could not determine if the tribunal acted Rather, within of its the focus of their scope authority. argu- ment is on the second the administrative order is prong—whether evidence. substantially supported by if does not Fricks that this standard The subject argue apply and the is a function the de novo review agency, judicial function was a contend the Fricks performing purely advance be For that a trial anew should allowed. support, they District, School Stephens Unified had (1975), this court where legislature recognized the district court to hear to a authority requirement impose (KCCR) Kansas Commission on Civil from the Rights appeals 44-1011(b) for a novo “trial de trial de novo. See K.S.A. (calling The district court in or a with without Stephens granted jury”). its to con- “announced intention unlimited discovery rights, parties novo, file a trial de and directed duct exchange parties Kan. at new 223. Neither offered lists of witnesses.” party any evidence, however, and the submitted to matter ultimately from the before the KCCR. district court on the record court, the district “the trial court On to this school alleged novo, a trial de its own conducted erroneously making findings record, fact, inferences its own from substituting drawing 218 Kan. at its for that of administrative agency.” judgment record 224. In that a review of the KCCR could constitute finding 44-1011, the concluded a trial de novo under K.S.A. court Stephens (‘with called trial de novo or without that “when the for a legislature 60-238’) with the of K.S.A. it meant accordance jury provisions both law would determined a trial where the issues of fact and 232. anew.” Kan. at next examined whether could court Stephens de novo on courts. review
constitutionally impose Recognizing was held there have been numerous cases in which it courts cannot decisions, the de administrative novo review standard to cases, those each of stating Stephens distinguished them “the function of the reviewed was one agency being be, determined either been or was has traditionally regarded, words, executive, the two—in other blend of legislative, *13 232; see, at ‘administrative’ function.” 218 Kan. e.g., Neely purely Trustees, v. Board Policemens & Firemen’s Retirement System, of (board 780, (1970) 72 funds es 205 Kan. 473 P.2d administering and their for of tablished benefit public employees dependents); Í6 Health, 721, State 202 (1969) v. Board Kan. 451 239 P.2d
Rydd
of
home); Foote,
of child care
In where an administrative agency performs purely function, the doctrine does not judicial separation powers pre- vent a court from a de novo review. Kan. conducting Stephens, at 236. in order decide which standard review Consequently, the court had to determine whether KCCR had con- applied, ducted administrative or function. judicial Stephens Gawith, turned to 206 Kan. a test to guidance regarding be utilized if the had determining agency performed function. Gawith,
In
this court discussed several tests. One test is
“whether the court could have been
in the first instance
charged
with the
the decisions the administrative
responsibility making
must
make.”
Kan. at 178. Another test is “whether the
agency
function
the administrative
is one that courts
performed by
have been accustomed to
and had
historically
performing
per-
formed before the creation of the administrative
[Citations
body.
Line,
[1908]).
211 U.S.
L. Ed.
Applying of workers essentially judicial rector compensation performs to mod- has the district court function power jurisdiction Therefore, it was held at 171. 206 Kan. “as may require.” ify justice 44-556, the district court which authorized K.S.A. 1967 that Supp. made,” un- the record did not novo “de to hear upon functions or administrative legislative constitutionally delegate was not vio- doctrine and the of powers separation judiciary, 6. lated. Syl. ¶ Gawith, the court deter- this discussion
Based on Stephens district’s into the school the KCCR’s mined that alleged inquiry was of Kansas Act Discrimination violation type Against It made and courts had essentially judicial. traditionally evidence, the involved finding receiving weighing facts to determine facts, law to those and the of existing application unlawful. The court of the defendant was conduct whether specific 44-1011(b) a trial de novo held, that K.S.A. requiring consequently, and was to be doctrine violate the did not powers separation 236. 218 Kan. at as written. that the same conclu make a The Fricks persuasive argument is es determination of relocation benefits sions here. The incurred as an evaluation of consequence damages sentially de of a owner making damages being displaced; property termination, receives and examiner the administrative hearing of facts and with evidence and is making findings charged weighs have been are functions that could conclusions of law. These given have and are functions that courts to a court historically performed. Moreover, test, a examiner investi the classic hearing applying declares, and enforces liabilities arising present past gates, 233-35; see laws. 218 Kan. at facts and under Angle already existing Revenue, 2d 758 P.2d v. Kansas 12 Kan. App. Dept. of (1988). Thus, is each of the tests rev. denied 243 Kan. satisfied, ex to conclude that an administrative us leading Kansas Act benefits under the aminer who determines relocation function. performs judicial
4. Strict Construction De Novo Administrative Review Statutes
This does not
mean the Fricks can
new ev-
necessarily
present
idence, however, because, even when an administrative
has
function,
this court has held that statutes
performed
pro-
*15
for de novo review on
from an administrative action
viding
appeal
v.
Kansas
must be construed
strictly. E.g., Nurge University of
Center,
Med.
309, 316,
234 Kan.
fact,
These cases
that when a statute
for trial de
recognize
provides
novo on
because,
there is an
in natural and or-
appeal
ambiguity
an
new,
action;
does not
dinary
it
usage,
appeal
signify
original
a review of an
decision. In
of this
signifies
existing
light
ambiguity
and because de novo review statutes
to administrative ac-
relating
tions are construed
unless there
an
is
strictly,
explicit legislative
otherwise,
direction
for de novo review does
generally
provision
not alter the
nature of the district court’s
appellate
authority
but
rather
it
to be
appeal,
specifies
procedure
employed.
234 Kan. at Wurtz v. Cedar
316;
Nurge,
28 Kan.
Apts.,
Ridge
App.
609, 614,
see also United States v. First
2d
(2001);
The
court also examined
Nurge
Flanigan City of
(1983),
232 Kan.
where the issue was the dis-
missal of an
from the KCCR based
the statute of
appeal
upon
and because
the matter
trial in
limitations
delay
bringing
the district court. The
court stated:
Flanigan
is, in
trial
the matter
tried
of the first
looms
theory,
specter
“Although
‘anew/
Indeed,
a
in the
even
the statute labels the
‘trial de
background.
though
are still in the nature of a
review’ of the KCCR
novo’
proceedings
‘judicial
And,
K.S.A. 44-1011.
the court stated in
the ‘trial de novo’ is
order.
as
Stephens,
‘limited to those issues
raised in an
before the
fairly
application
rehearing
”
commission.’
The court also that a de novo Flanigan recognized proceeding under K.S.A. 44-1011 “has elements of both an action and original review, an and that one of the elements of a valid de novo appeal” examination as identified is Stephens, independent previously 529; of the record. 232 Kan. at see 234 Kan. at Flanigan, Nurge, 315. cases,
After
these
court concluded
examining
previous
Nurge
essence of
under K.S.A. 44-1011 is a review of
the KCCR
“a review which an
but
proceedings,
independent
examination of the KCCR record is of
thorough
primary impor-
tance.”
that in the case of D. & R.G.W.R. et v. Public Service Commission, al., 431, 100 (1940), et 98 Utah P.2d 552 the question concerned statute review and authorizing plenary instructing courts to as a trial de novo. This court found the proceed following from the Utah case excerpt particularly enlightening: “ Thus, ‘To review an action tois or examine it “trial de novo” as study again. used here must have a consistent with the continued existence of that meaning If, cases, which is to be examined or studied. in these the first were again meaning [(1) to the use of the term “trial de novo” retrial new complete upon review, then one could not it evidence] of as as the Commis consistently speak sion’s action would no exist to be re-examined or re-studied. There would longer be no reason for the Commission a defendant to defend malting something ” had been out the district court action.’ automatically wiped by instituting Nurge, Co., 437-38). D. & at G.W.R 98 Utah at (quoting
The Utah court concluded that use of the term “trial de novo”
was meant
to increase the
of the
by
only
scope
court’s review of the
record to include
fact
agency’s
questions
as well as
of law.
With these
in
court found that the
thoughts
Nurge
nature of a de novo action under K.S.A.44-1011 is
appellate
clearly
retention of numerous
as shown by
legislature’s
predominant,
even after the addition
and review
references
statutory
Therefore,
in
After the decision
holding
Nurge,
trial,”
that the term “de novo
when used
and reaffirmed
decision,
an administrative
does not
context of an
from
mean new evidence can be introduced unless
stated
explicitly
For
in Reeves v.
Service Indus-
the statute.
Equipment
example,
(1989),
tries., Inc.,
165,
245 Kan.
Nevertheless, this court has that there can be a de recognized i.e., from the standard of where a court parture Nurge review— makes of fact and conclusions of law based independent findings on the administrative record —if a statute clearly expresses leg See, islative intent to allow new evidence. K.S.A. 2008 Supp. e.g., 8-259(a) (A trial de driver’s license “shall be suspension appeal novo to the court. The court shall take and examine the testimony facts.”). then, Even the review has been limited to the issues raised before the administrative Bruch v. Kansas Reve Dept. agency. nue, (2006); Kan. 148 P.3d App. Angle, at 764-65. 2d
22 intent to allow a clear
An example expression legislative is found in a statute relied evidence on additional upon by appeal 26-508(a), a trial 2008 the Fricks—K.S.A. provides Supp. award under the Eminent de novo on from appraisers’ appeal Act, 26-501 et This statute has been Domain Procedure K.S.A. seq. a new trial in the district court. The Fricks as interpreted allowing of K.S.A. 58-3509 should that the trial de novo suggest provision with the in a manner consistent appeal provision interpreted reason that both an eminent domain proceeding. They rights —the and the to receive relocation to receive fair market value right right and, therefore, action benefits —stem from the same governmental ac- standard of review should The Fricks do not the same apply. distinctions, however. several knowledge First, the before the is a eminent domain proceeding appraisers (a) as evidenced several judicial proceeding provisions: pro- (K.S.A. 2008 is initiated district court by filing petition ceeding 26-501); (b) condemnation cannot until the district Supp. proceed court makes au- findings, specifically finding condemning has the of eminent domain and that the is thority power taking to fulfill a lawful of the necessary corporate purpose condemning (K.S.A. 26-501); (c) 2008 if these determina- authority Supp. made, (K.S.A. tions are the court three 2008 appoints appraisers 26-504), them, instructs other among things, “they Supp. the court and are not representatives plaintiff officers of added.) (K.S.A. 2008 26- other any party.” (Emphasis Supp. 505[1].)
Second, the eminent domain do not that a procedures require record be made of the see K.S.A. 2008 appraisers’ hearing, Supp. 26-506; on a review the record is thus based appeal impos- sible. case,
Third, in contrast to the
statute in our
applicable
26-508(a)
2008
further
“The
shall be dock-
Supp.
provides:
action,
new
fee
a new
eted as a
civil
docket
court action
shall be collected and the
shall be tried as
other civil
any
added.)
Co.,
action.”
See Miller v. Glacier Development
(Emphasis
476, 499-500,
(2007)
26-508 in
P.3d
(discussing
trial);
civil
see also Rural Water District No. v.
context of
City of
Further, if we were two statutes comparing allowing appeals from an administrative worded like the eminent proceeding —one domain the shall be a new action and tried procedure stating appeal 58-3509(a) like civil case and the other worded like K.S.A. any shall be trial de novo—an stating appeal interpretation that the former statute allows a new trial while the latter does not with would be consistent decisions that that addi- prior recognize tional evidence can admitted if be the appeal legislature explic- Nevertheless, cases, allows. under the of these if there itly holdings is not an indication that additional evidence should al- explicit lowed on the district court’s review is to be based on the appeal, administrative record and the court is to make find- independent of fact and conclusions of law. ings rules,
These which were in discussed the 1983 decision in fully have been for decades to the 2004 Nurge, applied consistently prior Thus, enactment of K.S.A. 58-3509. L. See ch. sec. 9. these were well-established law in Kansas when the principles K.S.A. 58-3509 was considered the right legislature, and courts the acts with presume legislature knowledge existing and case law when it enacts State exrel. Board statutory legislation. Arts v. Healing Beyrle, when the chose to make ref- Consequently, legislature repeated erences to the terms and “notice of and to use “appeal” appeal” 58-3509, “trial de novo” in the K.S.A. as it had in tire phrase (K.S.A.44-1011) in statute construed and other similar stat- Nurge utes, we intended of review to presume scope cases, be as in and similar as discussed. applied Nurge previously Because of this value of presumption, precedential Nurge similar cases cannot be set aside even we though recognize sound made in the we points concurring opinion. Consequently, 58-3509(a). to K.S.A. Nurge holding
This means that the district court was correct to limita- impose tions to its review rather than new as grant entirely procedure Fricks, in but the court was error applying
requested by Rather, in evidence standard. substantial considering competent 58-3509(a), the district court should have under law made of fact and conclusions of independent findings regarding based the record of of relocation benefits upon pro- question before the administrative examiner. This case ceedings hearing must be remanded for a consideration of the record light correct standard review.
Because we reach this conclusion we need not discuss the Frick’s alternative that the district court erred argument affirming relocation benefits determinations of the and the ex- aminer.
Reversed and remanded with directions. Nuss, not
McFarland, C.J., J., participating.
Larson, Hill, S.J., J., assigned. I concur the result reached JOHNSON,J., concurring: the case must be reversed and remanded for the district majority; court to the standard of review set forth in the explicitly statute, i.e., “a trial de novo on the issue of relo- applicable only 58-3509(a). cation benefits.” K.S.A. I write separately express with frustration the court-created confusion as to the my meaning novo,” of the term “trial de means “new trial.” I literally dare that both what say lawyers laypersons fully comprehend it means to be a new trial. Latin granted Simply using phraseology should not the term to mean whatever the court change procedure deems under the circumstances. appropriate
I can understand the motivation for of trial altering meaning de novo where the doctrine is be- separation powers implicated cause of the court’s to construe a statute in such a manner duty
25
that it will be
valid. See Martin v. Kansas
constitutionally
Dept. of
Revenue,
625, 629-30,
285 Kan.
(2008).
However,
P.3d 938
even where the court is
with that
it
attempting
comport
duty,
not rewrite a clear and
statute to
itmake
“may
unambiguous
pass
630;
constitutional muster.” 285 Kan. at
Marsh,
see also State v.
520, 538-39, 102
278 Kan.
(2004)
P.3d 445
canon that
(interpretive
n statutesshould be construed to avoid constitutional
is
questions
anot
license for the
to rewrite
enacted
judiciary
language
rev clon
Marsh,
other
Kansas v.
548 U.S.
legislature),
grounds
429, 126
(2006).
165 L. Ed. 2d
S. Ct. 2516
in those
Arguably,
prior
cases where the
for a trial de novo review of
legislature’s provision
administrative action offended the constitutional
agency’spurely
doctrine of
separation
solu
powers,
“appropriate judicial
tion” was to hold that the statute was unconstitutional and let the
Marsh,
resolve the matter.
Nevertheless, as the
majority acknowledges,
separation
case,
doctrine is not
in this
and we need not
powers
applicable
“
”
“
the ‘avoidance doctrine’ or the
‘rule of
employ
constitutional
” Marsh,
doubt.’ See
I 58-3509(a) submit that K.S.A. that Ben and Lavelle plainly says Frick a new trial on Moreover, the issue of relocation benefits. get *21 the term “trial” is understood to mean the ordinarily presentation of evidence factfinder, and witnesses before a not a review judicial of a record of a See Kansas prior proceeding. Nurge University of Center, 309, 319, Med. (1983) (Schroeder, 459 P.2d to trial means a trial with live C.J., dissenting; right jury testimony, where finds from possible). majority precedent departing of new trial because of a ordinary meaning perceived ambiguity created the use of the term in with the by “appeal,” conjunction term “trial rationale, actual, de novo.” Under that commonly where the author-
understood new trial should never be possible as an statute designates subsequent procedure appeal. izing 22-3609(1), However, in the word “appeal” appears to the dis- a court defendant “the to right appeal grants municipal court,” (4), which to “the trial of trict and in subsection speaks instance, Yet, trial in cases.” in that district municipal appeal anew, scratch; the evidence must be court starts from presented Granted, that from live and statute addresses appeal person. a action rather than an of an action. How- appeal agency’s alone, ever, that the word does not create is point “appeal,” in that as to what is meant the word context by any ambiguity “trial.” tire create an is even more word
Utilizing
“appeal”
ambiguity
with
trial
novo
curious
to the version of
de
manufactured
respect
in this case.
Nurge majority
adopted by
majority
version,
means,
alia,
“trial de
inter
that
Under
the term
novo”
fact,
the district court is to make
but that
independent findings
such
must be
from the record of the ad-
findings
gleaned solely
ministrative
examiner’s
hearing
proceedings. Factfinding
appel-
late
is an anathema. See LSF Franchise REO I v.
jurisprudence
Restaurants, Inc.,
(2007)
Kan.
152 P.3d
Emporia
(an
fact).
court does not redetermine
As
appellate
questions
out
the dissent
the candor and
pointed
Nurge, “[assessing
of witnesses is
without
credibility
seriously handicapped
seeing
demeanor and
the live
of the witness.” 234 Kan.
testimony
(Schroeder,
at 320
“The
of a cold written
C.J., dissenting).
reading
record does not
the court or a
to determine the cred-
jury
permit
(same). Yet,
of witnesses.”
trial on the a substantial com- record agency proceeding, *22 record, evidence review of an other petent something trial, than a new let it as much. say