Printable Format77-612. Exhaustion of administrative remedies. A person may file a petition for judicial review under this act only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other agency authorized to exercise administrative review, but:
(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.
Law Review and Bar Journal References:
"Challenging and Defending Agency Actions in Kansas," Steve Leben, 64 J.K.B.A. No. 5, 22, 33, 37 (1995).
"A Species Unto Themselves: Professional Disciplinary Actions," Mary Feighny and Camille Nohe, 71 J.K.B.A. No. 6, 29 (2002).
"Don't Plan on Aging: The Kansas Supreme Court Reaffirms Its Hostility Toward Medicaid Planning [Brewer V. Schalansky, 102 P.3d 1145 (Kan. 2004)]," Bryn A. Poland, 45 W.L.J. 491 (2006).
"Procedures Under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq.," Martha J. Coffman, 76 J.K.B.A. No. 2, 21 (2007).
CASE ANNOTATIONS
1. Cited; judicial review unavailable where party fails to exhaust administrative remedies as required herein and by K.S.A. 77-607. W.S. Dickey Clay Mfg. Co. v. Kansas Corp. Comm'n, 241 Kan. 744, 751, 740 P.2d 585 (1987).
2. Petition for judicial review may be filed only after exhaustion of all administrative remedies within agency being challenged. Expert Environmental Control, Inc. v. Walker, 13 Kan. App. 2d 56, 58, 761 P.2d 320 (1988).
3. Rights and liabilities between those held jointly liable to claimant as beyond jurisdiction of workers compensation proceeding examined. American States Ins. Co. v. Hanover Ins. Co., 14 Kan. App. 2d 492, 500, 794 P.2d 662 (1990).
4. Secretary of human resources and district court as having concurrent jurisdiction under wage payment act (K.S.A. 44-312 et seq.) determined. Spor v. Presta Oil Co., 14 Kan. App. 2d 696, 697, 798 P.2d 68 (1990).
5. Where action duly revived (K.S.A. 60-225), appellate decision, if any, noted as final judgment perfecting demand against estate (K.S.A. 59-2238). In re Estate of Rains, 249 Kan. 178, 183, 815 P.2d 61 (1991).
6. District court lacked subject matter jurisdiction in tax relief action due to failure of plaintiffs to exhaust administrative remedies. Zarda v. State, 250 Kan. 364, 366, 826 P.2d 1365 (1992).
7. District court lacked subject matter jurisdiction in action to recover vehicle registration taxes; failure to exhaust administrative remedies. Dean v. State, 250 Kan. 417, 420, 826 P.2d 1372 (1992).
8. What constitutes exhaustion of all administrative remedies before judicial appeals allowed of decisions of Kansas human resources commission (K.S.A. 44-1001 et seq.) examined. United Steelworkers of America v. Kansas Comm'n on Civil Rights, 253 Kan. 327, 331, 855 P.2d 905 (1993).
9. Whether motion to reconsider order of Kansas civil service board is permissive tolling limitations period for judicial review examined. State Bank Commissioner v. Emery, 19 Kan. App. 2d 1063, 1066, 1069, 880 P.2d 783 (1994).
10. Remand from Workers Compensation Board to ALJ is not a final order subject to appellate review. Williams v. General Electric Company, 27 Kan. App. 2d 792, 9 P.3d 1267 (2000).
11. Plaintiff required to exhaust all administrative remedies before proceeding under KJRA; failure of SRS to provide insurance qualifies as an agency action. Jones v. State, 279 Kan. 364, 109 P.3d 1166 (2005).
12. Cited in discussion of standing; persons commenting during public hearing by agency meet KJRA standing requirements. Board of Sumner County Comm'rs v. Bremby, 286 Kan. 745, 755, 189 P.3d 494 (2008).
13. Cited; appeal to secretary of revenue essential to exhaustion of administrative remedies. Blomgren v. Kansas Dept. of Revenue, 40 Kan. App. 2d 208, 213, 215, 191 P.3d 320 (2008).
14. Cited; appellant failed to exhaust administrative remedies before seeking district court action; appeal dismissed. Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009).
15. Exhaustion requirement applies to administrative procedures, not to individual issues to be reviewed. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 204 P.3d 562 (2009).
16. Exhaustion of administrative remedies refers to administrative procedures not to issues. Rebel v. Kansas Dept. of Revenue, 288 Kan. 419, 204 P.3d 551 (2009).