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Property owners appealed a special tax assessment the Board of County Commissioners levied against real property for cleanup costs the County claimed it incurred while removing dangerous structures and unsightly conditions on that property. The district court found subject matter jurisdiction lacking and granted the County's summary judgment motion. The court of appeals affirmed. At issue on appeal was whether the property owners' claims could be brought on direct review under Kan. Stat. Ann. 60-907(a), which provides injunctive relief against an illegal levy or enforcement of any tax, charge, or assessment. The Supreme Court affirmed and in part and reversed in part, holding (1) the property owners satisfied the jurisdictional burdens under section 60-907(a) on two of its three issues; and (2) because the district court went beyond the jurisdiction question and found for the County on the merits and the court of appeals stopped short of considering the merits of any claims when it found the entire case was jurisdictionally barred, the court of appeals erred in part in its jurisdictional ruling. Remanded to the court of appeals to determine whether the district court properly granted summary judgment as to the remaining claims.Receive FREE Daily Opinion Summaries by Email
IN THE SUPREME COURT OF THE STATE OF KANSAS
VICTOR W. BARNES and NANCY BARNES,
BOARD OF COUNTY COMMISSIONERS OF COWLEY COUNTY,
SYLLABUS BY THE COURT
Courts have no inherent appellate jurisdiction over official acts of administrative
officials or boards. Absent a statutory provision for judicial review, courts are limited to
certain equitable remedies.
Public agencies and boards act in legislative, administrative, judicial, and quasijudicial capacities.
K.S.A. 19-223 provides the exclusive method by which a district court may review
a judicial or quasi-judicial decision by a board of county commissioners.
K.S.A. 19-223 does not apply to an administrative decision by a board of county
Assessment of a tax by a board of county commissioners is administrative in
To pursue a claim of an illegal tax under K.S.A. 60-907(a), that claim must be
judicial in nature, not administrative, in order to avoid the requirement that litigants
exhaust administrative remedies on tax matters.
A claim is judicial in nature if it alleges an administrative official or board acted
without authority or took action that was permeated with fraud, corruption, or conduct so
oppressive, arbitrary, or capricious as to amount to fraud in connection with the levy of
any tax, charge, or assessment.
Review of the judgment of the Court of Appeals in an unpublished opinion filed April 3, 2009.
Appeal from Cowley District Court; J. MICHAEL SMITH, judge. Opinion filed September 2, 2011.
Judgment of the Court of Appeals dismissing the appeal is affirmed in part and reversed in part, and the
case is remanded with directions to the Court of Appeals.
Christopher A. Rogers, of Rogers & Lanning, of Winfield, argued the cause and was on the briefs
Edward L. Keeley, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, argued
the cause and was on the briefs for appellee.
The opinion of the court was delivered by
BILES, J.: This is an appeal from a special tax assessment the Cowley County
Board of County Commissioners levied against real property for cleanup costs the
County claims it incurred while removing dangerous structures and unsightly conditions
on that property. The property owners challenge the assessment, but both lower courts
found subject matter jurisdiction lacking and dismissed the litigation. The legal issue
turns on whether the claims may be brought on direct review under K.S.A. 60-907(a),
which provides injunctive relief against an illegal levy or enforcement of any tax, charge,
To answer this question, we must determine whether K.S.A. 60-907(a) or K.S.A.
19-223 governs jurisdiction as to some or all of the allegations made. The analysis
required is a multi-step process because K.S.A. 19-223 controls if the Board action at
issue was taken in a judicial or quasi-judicial capacity, while K.S.A. 60-907(a) is
applicable only to Board action taken in an administrative or legislative capacity. The
first step is to determine whether any claims are controlled by K.S.A. 19-223. If so, those
claims were properly dismissed. But as to any remaining claims, our inquiry does not end
and additional steps in the analysis are required because K.S.A. 60-907(a) applies only if
the nature of a claim is judicial. Admittedly, sifting through the various allegations made
in this case to first determine the character of the Board action challenged before then
exploring the nature of an individual claim can be confounding, especially since our case
law uses similar terminology in different contexts and with different emphasis. But in the
end, we determine jurisdiction exists for some of the claims made in this case. We
remand to the Court of Appeals to consider whether the district court properly granted
summary judgment as to those remaining claims.
Factual and Procedural Background
Victor and Nancy Barnes (property owners) own but do not reside on
approximately 14 acres of land in Cowley County, Kansas. In August 2005, five county
residents petitioned the Board, alleging the land contained structures unfit for human use
and presented a nuisance because the structures were falling in, the land was overgrown
with tall weeds, and old cars were parked around the buildings. This complaint was filed
pursuant to Cowley County Resolution 2005-01, which the Board adopted to identify and
clean up unsafe structures and unsightly conditions on County properties.
In December 2005, Jim McGuire, a Cowley County Health Department
Environmental Technician, visited the property owners' land to conduct a preliminary
investigation into the allegations as a procedural step pursuant to Resolution 2005-01.
McGuire agreed the land contained dangerous structures, an open basement unfit for
human use or habitation, and miscellaneous debris creating a nuisance. On December 22,
McGuire mailed the property owners a formal complaint describing the property's
condition and giving notice of a January 17, 2006, hearing. The complaint also advised
the property owners that they could file an answer or appear in person to present evidence
to refute the claims, but they did neither. The property owners were temporarily living
out of state and claim they called McGuire before the hearing to advise him they would
return to Kansas in March or April.
At the January hearing, the Board found the property did not comply with
standards established in Resolution No. 2005-01 because of the unsafe structures; open
basement; inoperable and unsightly parked vehicles; abandoned tires, appliances, and
barrels; overgrown vegetation; and miscellaneous debris. The Board adopted a written
order, dated January 17, 2006, stating the property owners must "commence" within 30
"(1) to either repair, alter, clean-up or improve structures to render the structure
fit for human use or habitation; to vacate and close the structure until conformance with
thee [sic] regulations are met; or to remove or demolish such structure; [and]
"(2) to abate or remove the accumulation of materials creating a nuisance on the
property . . . . "
The order further notified the property owners that failure to "commence within
the time stated" or "diligently prosecute the same until the work is completed" would
carry consequences, stating:
"[T]he Board of County Commissioners does hereby authorize and direct county
staff to undertake efforts using county personnel or private contractors to bring said
property into compliance. Further, the amount of the cost of removal or demolition of a
structure or the removal or abatement of accumulation of materials creating a nuisance on
a lot or parcel of land by the County and the cost of providing notice, including postage,
shall be a lien against the real property upon which such cost was incurred and such lien,
including as part thereof allowance of all costs and necessary attorney fees, may be
foreclosed in judicial proceedings in the manner provided or authorized by law for loans
secured by liens on real property, or shall be assessed as a special assessment against the
lot or parcel of land on which the structure or the accumulation of materials creating a
nuisance was located, and the County Clerk shall at the time of certifying other taxes,
certify the unpaid portion of the aforesaid costs and shall extend the same on the tax rolls
of the County against said lot or parcel of land."
According to Victor Barnes, he received the order sometime in early February and
told McGuire he would hire someone to address the Board's concerns when he returned
to Kansas in early April. He claims McGuire told him the County would not take any
remedial action as long as cleanup work was progressing.
On March 14, 2006, the county counselor sent the property owners a letter stating
that they had 21 days to comply with the Board's order or the County would complete the
work. The letter further indicated that "[t]hese costs will be billed to you, the property
owners, and if not paid then they will be assessed to the real estate . . . as a special
The property owners returned to Kansas in early April and hired a contractor,
Jacob Henderson. They claim Henderson was to raze the three buildings on the property,
fill in the house's basement and a water well, remove dead trees and broken limbs, and
dispose of some old appliances. In an affidavit later filed as part of the court proceedings,
Henderson estimated the entire cleanup would cost $5,000. The property owners paid
Henderson a $1,800 deposit. Henderson claims he spent more than 58 hours razing the
barn and shed, tearing down the old brick house and piling the brick for salvage, filling
the basement and the water well, disposing of tires and appliances, and cleaning up limbs
and dead trees. But Henderson was unable to complete the project because of heavy rains
and personal illness. Henderson claims he returned to the property to complete the work,
but Cowley County equipment was already there and the county counselor instructed him
over the phone not to finish the project.
From May 30 to June 5, 2006, Cowley County employees performed their own
cleanup. An affidavit by the county engineer indicates the county crew performed the
following work: (1) removed the porch, a 3-foot brick wall and debris, and filled in the
basement; (2) removed a shed; (3) broke the top and sides of two cisterns and filled them
with top soil; (4) removed the foundation and chimney base of the barn; (5) removed a
pickup topper filled with canned beans and corn; (6) removed 194 tires and some sapling
trees that had grown around them; (7) removed numerous metal barrels, parts of
appliances, tin and wooden junk, fencing, barbed wire, and other debris, which required
the removal of some sapling trees; and (8) mowed the high weeds and brush. The County
billed the property owners $11,740.75 for this work. The parties agree that when the bill
was not paid, this amount was "placed on [the property owners'] tax statement and
charged as an assessment, tax, or charge and instituted a lien against [the] real property."
On March 27, 2007, the property owners sued the County. The petition sought an
injunction pursuant to K.S.A. 60-907 to prevent the Board from enforcing the tax lien or
attempting to collect the amount billed. The petition does not clearly identify the statutes
or County activities at issue. But, highly summarized, the property owners claimed: (1)
the County acted without statutory authority when it completed the work and levied the
claimed costs against the property; (2) Resolution 2005-01 was void and unenforceable
because it contradicted Kansas nuisance abatement statutes; and (3) the County violated
the property owners' due process and equal protection rights.
The County moved to dismiss the lawsuit, arguing the district court lacked subject
matter jurisdiction. It claimed the property owners were required to appeal the County's
actions under K.S.A. 19-223 within 30 days of the Board's January 2006 cleanup order.
The County argued this statute was the exclusive method by which a district court may
review judicial or quasi-judicial board actions, and the failure to comply with the statute
deprived the district court of jurisdiction. As an alternative argument, the County
contended the property owners failed to state a claim because Resolution 2005-01 was
not illegal or unconstitutional. The property owners responded and moved for judgment
on the pleadings.
The district court construed the parties' pleadings as cross-motions for summary
judgment. It held it lacked subject matter jurisdiction over the property owners' claims
because there was no appeal within 30 days of the Board's January 2006 cleanup order,
which the court found was required by K.S.A. 19-223. But despite finding it lacked
jurisdiction, the district court went on to reach the merits of the claims by granting the
County's summary judgment motion and denying the property owners' motion. The
property owners appealed all adverse district court rulings.
The Court of Appeals affirmed the district court's finding that it lacked
jurisdiction. It interpreted the property owners' claims as "an attack on the County's
decision that their property did not comply with the newly adopted resolution." Barnes v.
Board of Cowley County Comm'rs, No. 99,609, 2009 WL 929117, at *1 (Kan. App.
2009) (unpublished opinion). The property owners petitioned this court for review, which
we granted solely to determine whether the Court of Appeals erred in finding no subject
matter jurisdiction. See Supreme Court Rule 8.03(g)(1) (2010 Kan. Ct. R. Annot. 68).
This court has jurisdiction under K.S.A. 20-3018(b) (review of Court of Appeals'
The sole issue is whether the district court had subject matter jurisdiction over the
property owners' claims. Whether jurisdiction exists is a question of law subject to
unlimited review. Harsch v. Miller, 288 Kan. 280, 286, 200 P.3d 467 (2009).
Courts have no inherent appellate jurisdiction over official acts of administrative
officials or boards, unless there is a statute providing for judicial review. Absent such a
statutory provision, appellate review of administrative decisions is limited to claims of
relief from illegal, fraudulent, or oppressive official conduct through the equitable
remedies of quo warranto, mandamus, or injunction. Umbehr v. Board of Wabaunsee
County Comm'rs, 252 Kan. 30, 38, 843 P.2d 176 (1992). The right to appeal an
administrative decision is not vested or constitutional; it is statutory and may be limited
or completely abolished by the legislature. The property owners do not seek review
through the court's equitable powers.
Instead, the property owners argue K.S.A. 60-907(a), which provides injunctive
relief from an illegal tax, gave the lower courts jurisdiction. In contrast, the County
argues K.S.A. 19-223, which governs appeals from decisions of boards of county
commissioners, controls. The district court and Court of Appeals agreed with the County
and held K.S.A. 19-223 most applicable. They held further that the property owners
failed to comply with the statute's prerequisite provisions by not appealing the Board's
January 2006 cleanup order within 30 days. This failure, both courts reasoned, statutorily
deprived them of jurisdiction.
But K.S.A. 19-223 applies only if the challenged county action is judicial or quasijudicial in nature. Dutoit v. Board of Johnson County Comm'rs, 233 Kan. 995, 998-99,
667 P.2d 879 (1983) (K.S.A. 19-223 is exclusive method to review a judicial or quasijudicial decision by a board of county commissioners; statute inapplicable to appeals
from legislative-type decision); see also Larson v. Ruskowitz, 252 Kan. 963, 965-66, 850
P.2d 253 (1993) (statute inapplicable when board of county commissioners acts in an
administrative capacity to approve an employee reorganization plan and declines later to
modify that plan).
Is K.S.A. 19-223 the statute governing jurisdiction over these claims?
Public agencies and boards exercise legislative, administrative, judicial, and quasijudicial powers. Umbehr, 252 Kan. at 33. And it is well established that K.S.A. 19-223 is
the exclusive means to review Board conduct that is judicial or quasi-judicial in nature.
Dutoit, 233 Kan. at 998-99. K.S.A. 19-223 states:
"Any person who shall be aggrieved by any decision of the board of
commissioners may appeal from the decision of such board to the district court of the
same county, by causing a written notice of such appeal to be served on the clerk of such
board within thirty days after the making of such decision, and executing a bond to such
county with sufficient security, to be approved by the clerk of said board, conditioned for
the faithful prosecution of such appeal, and the payment of all costs that shall be
adjudged against the appellant."
The County argues K.S.A. 19-223 applies exclusively to this appeal because the
Board was acting in a judicial or quasi-judicial capacity when it entered its order finding
the property did not comply with Resolution 2005-01, ordering the property owners to
bring the land into compliance, and notifying them the County would complete the work
at the owners' expense if they failed to diligently prosecute the order. In contrast, the
property owners argue their challenge targets the tax assessment only and not the initial
finding that their land did not comply with the resolution. A closer review of the claims
supports their contention.
The petition does not ask the district court to reverse the initial cleanup order.
Rather, the prayer for relief is for "an order permanently enjoining [the Board] from
imposing any charge, assessment, or tax on Plaintiffs or Plaintiffs' real estate; and . . .
from attempting to collect or enforce the collection of any charge, assessment or tax from
Plaintiffs or against any real property owned by Plaintiffs." The property owners' brief to
this court makes clear that it "is the levy of an illegal tax upon Plaintiffs' real property and
the attempted enforcement thereof which is the basis of Plaintiffs' suit, not the finding
that their property did not meet the standards of the resolution." Furthermore, the
property owners' actions confirm they did not dispute the County's determination that the
land contained unsafe structures and required cleanup. In fact, they hired a contractor and
paid him to accomplish that cleanup.
What is at the heart of this dispute is the special tax assessment amount, which is
directly impacted by: (1) the county staff's decisions to dismiss the property owners'
contractor and complete the work using county resources; (2) the degree of cleanup
achieved by county personnel; and (3) the costs the County claims were reasonably
incurred to finish the job. All of these county actions came well after 30 days from the
date of the initial cleanup order. Therefore, even though we would agree the initial
cleanup order is a judicial or quasi-judicial determination made by the Board, that order
is distinct from what the Board and county personnel did after the order was issued.
But the County argues this distinction is irrelevant because the special tax
assessment stems from the January 2006 order. The County asserts the property owners
had to appeal the initial cleanup order within 30 days to preserve the right to challenge
any future tax assessment that may (or may not) have followed. How the property owners
could anticipate and articulate unreasonable conduct, misconduct, or overcharging by
county staff in some future implementation of the initial cleanup order is not explained.
And this is an obvious weakness in the County's argument.
But to support its defense, the County directs us to our Court of Appeals' decisions
in Kirtdoll v. City of Topeka, No. 95,946, 2007 WL 570293 (2007) (unpublished
opinion), rev. denied 284 Kan. 946 (2007), and Dahl v. City of Shawnee, No. 92,144,
2006 WL 851232 (2006) (unpublished opinion). Kirtdoll and Dahl both deal with a
plaintiff's failure to exhaust administrative remedies under a different statute, K.S.A. 602101(d), which governs appeals from a political subdivision exercising judicial or quasijudicial functions. We must consider these unpublished decisions in more detail to
explain why they differ from the case brought by the property owners here.
In Kirtdoll, an administrative hearing officer found Frank Kirtdoll in violation of
two Topeka city ordinances and ordered him to abate a property nuisance within 30 days
by removing some abandoned vehicles and other material from his premises. The order
authorized the City to remedy the problem if Kirtdoll did not comply. He did not appeal
that order or clean up the property, so the City secured a district court warrant to enter the
premises to seize and dispose of the offending material. Kirtdoll sued the City for
damages 2 years later, claiming due process violations, deprivation of property, trespass,
and unlawful search and seizure. The City argued Kirtdoll was required to appeal within
30 days of the original abatement order under K.S.A. 60-2101(d), and that the district
court lacked jurisdiction because he did not exhaust administrative remedies. The Court
of Appeals agreed, holding Kirtdoll was required to appeal within 30 days of the original
order pursuant to K.S.A. 60-2101(d) and could not collaterally attack the administrative
order through an independent tort action.
In Dahl, a natural disaster damaged the foundation of Bryan Dahl's home. A City
of Shawnee inspector determined it was a hazardous condition and ordered Dahl to repair
or remove the foundation within 30 days. When Dahl did not comply, the Shawnee City
Council passed a resolution setting a hearing for Dahl to show cause why the structure
should not be repaired or demolished. At the hearing, the Council adopted a resolution
finding the structure unsafe or dangerous. It ordered Dahl to install safety fencing and
submit an engineering plan for the foundation's removal. Under that resolution, the City
would remedy the conditions if Dahl failed to comply. When Dahl continued to be in
noncompliance, the Council held another meeting after giving Dahl notice. At that
meeting, the Council found Dahl had not complied with the resolution and accepted a bid
to proceed. The City's contractor completed the work. Dahl later sued the City for
property damage he alleged occurred during the demolition. The City argued Dahl was
required to appeal under K.S.A. 60-2101(d) within 30 days of the initial resolution, and
because he did not do so, he failed to exhaust administrative remedies. The Court of
Appeals held the initial resolution was the only order necessary for the City to demolish
the structure under K.S.A. 12-1755, which allowed the City to raze or remove unsafe
structures if the owner failed to "diligently prosecute" the removal or repair, so Dahl had
30 days to appeal. Finally, the Dahl court held his failure to exhaust administrative
remedies deprived the court of jurisdiction.
Kirtdoll and Dahl are distinguishable because they are civil actions for monetary
damages. They do not involve the levying of disputed cleanup costs as a special tax
assessment against property. And it is well established that the assessment of a tax is
administrative in nature. See J. Enterprises, Inc. v. Board of Harvey County Comm'rs,
253 Kan. 552, 555-56, 857 P.2d 666 (1993) (jurisdiction depends on the nature of the
actual relief sought); Dutoit, 233 Kan. at 999 (determination of extent of benefit property
received from a public improvement for the purpose of calculating special assessment is
legislative or administrative in nature); Gravey Grain, Inc. v. MacDonald, 203 Kan. 1,
29, 453 P.2d 59 (1969) (assessment and valuation of property are administrative
functions); Harshberger v. Board of County Commissioners, 201 Kan. 592, Syl. ¶ 2, 442
P.2d 5 (1968) (taxation matters are administrative in character); Silven v. Osage County,
76 Kan. 687, 689, 92 P. 604 (1907) (matters of assessment and taxation are
administrative, not judicial).
We agree that the Board acted in a quasi-judicial capacity on January 17, 2006,
when it investigated and weighed the facts and ultimately determined the property did not
comply with Resolution 2005-01 and ordered the cleanup. See Brown v. U.S.D. No. 333,
261 Kan. 134, 155-56, 928 P.2d 57 (1996) (distinguishing quasi-judicial functions from
purely administrative or executive functions by whether the function involves the
exercise of discretion, requires notice and a hearing, involves the application of legal
criteria to specific facts, or carries with it any of the "normal trappings" of a judicial
inquiry, such as the presentation of evidence or the presence of counsel). But the
character of the County's actions shifted to administrative when the Board assessed the
special tax. Cf. Golden v. City of Overland Park, 224 Kan. 591, 597, 584 P.2d 130 (1978)
(When the focus of a governing body shifts from legislative policy or executive duty to a
zoning determination as to one specific tract of land, the function becomes quasi-judicial
Moreover, the decision to levy a tax against the property was not self-executing.
Under the Board's January 2006 order, there were two mechanisms available to the
County to recover any costs it might incur cleaning up the land. The Board could either
begin judicial proceedings to impose a lien on the real property or it could enter a special
tax assessment. It chose to levy the special tax assessment at issue here. Accordingly, we
find the County was acting in an administrative capacity when the Board decided to levy
the tax. Therefore, K.S.A. 19-223 does not control all of the claims in this litigation as the
district court and Court of Appeals determined.
We emphasize that our analysis only establishes the character of the County's
action, at least in part, as administrative for the purpose of determining jurisdiction; and
we are not reaching the merits of the claim that the Board lacked the authority to levy this
special tax assessment. We simply hold that K.S.A. 19-223 does not necessarily operate
as a jurisdictional bar to all of the arguments made by the property owners. Therefore, we
must examine each claim separately to determine whether it actually challenges the
special tax assessment and avoids K.S.A. 19-223's jurisdictional bar.
Does each claim avoid the jurisdictional bar?
Admittedly, in some instances, deciphering the nature of the relief sought under
each of the property owners' claims is difficult, but it is a necessary exercise. We
categorize the claims generally as follows:
(1) The property owners contend the County exceeded its statutory authority in
violation of the County Home Rule Act, K.S.A. 19-101 et seq. when the Board enacted
the self-help and abatement remedy provisions in Section 6 of Resolution 2005-01. This
attacks the Board's ability to levy the tax at issue. It is properly characterized as a
challenge to a tax assessment and falls under K.S.A. 60-907(a). This claim is not
jurisdictionally barred by K.S.A. 19-223.
(2) The property owners also claim Resolution 2005-01 is void because it prohibits
a broader class of conduct than the criminal nuisance statutes, K.S.A. 21-4106 and K.S.A.
21-4107. This argument is two-pronged: (a) The County is only entitled to declare a
nuisance for conditions that injure or endanger the public health, and the property owners
contend it goes beyond those limitations; and (b) the County exceeded its authority by
creating its own procedures to determine whether a nuisance exists. We find the Court of
Appeals was correct in its analysis that the nature of relief sought under these arguments
is best characterized as a challenge to the Board's January 2006 cleanup order and only
tangentially related to the special tax assessment. While a finding that the order was
improperly entered would ultimately negate the tax assessment, we agree the property
owners were required to bring this claim earlier under K.S.A. 19-223. We find both
prongs of this argument barred.
(3) The property owners further claim Resolution 2005-01 is unconstitutionally
vague in violation of the United States Constitution's Fifth and Fourteenth Amendment
due process requirements because: (a) Sections 5(a) and 5(b) are vague and overbroad
when defining what constitutes a nuisance and an unsightly appearance, in violation of
their right to due process; and (b) Section 5 is overly vague and gives the County's agent
unbridled authority to determine whether a property constitutes a nuisance. Related to
this, the property owners also argue Resolution 2005-01 is overbroad because it prohibits
the constitutionally protected right to peaceful ownership, use, and enjoyment of property
by prohibiting conditions that are neither injurious nor a danger to public health. We find
these contentions are also only tangentially related to the special tax assessment and more
properly viewed as a challenge to the Board's January 17, 2006, order finding that the
property does not comply with Resolution 2005-01. The property owners were required
to bring these issues under K.S.A. 19-223 and may not now proceed under K.S.A. 60907(a).
(4) The property owners further argue Resolution 2005-01 violates the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution
because it exempts farmers and those engaged in agricultural pursuits from its provisions.
The argument made is that there is no rational basis for treating general landowners
differently than farmers. Again, this is not directly related to the special tax assessment. It
is better characterized as a challenge to the Board's order finding the land is not in
compliance with Resolution 2005-01. As such, it cannot now be raised under K.S.A. 60907(a).
(5) Finally, the property owners make various arguments that Resolution 2005-01
was unconstitutional as applied to them and that the County's conduct toward them was
arbitrary and capricious. They assert the following: (a) They were not given sufficient
notice or opportunity to attend the January 17, 2006, hearing; (b) the County's actions
conflicted because the county environmental technician assured them by phone the
County would not act as long as the cleanup was progressing, but then the county
counselor sent a letter shortly thereafter requiring compliance within 21 days; (c) the
county employees entered the property and began work despite the progress the property
owners made complying with the order; and (d) the County engaged in arbitrary and
capricious conduct because the work performed exceeded any legitimate goals of abating
dangerous conditions and amounted to beautifying the property. We find the first claim in
this series (sufficient notice of the January 2006 hearing) is essentially just another attack
on the Board's order and needed to be raised under K.S.A. 19-223. It is subject to the
jurisdictional bar. But the remaining claims are sufficiently tailored to challenge the
special tax assessment and survive a jurisdictional attack. These latter claims go to the
County's decision to initiate its own cleanup efforts and the degree of work performed,
which was ultimately determinative of the amount the County billed. Those may properly
be seen as claims under K.S.A. 60-907(a).
In summary, this analysis leads us to the conclusion that only some of the property
owners' claims appropriately targeted the special tax assessment under K.S.A. 60-907(a).
The Court of Appeals correctly found K.S.A. 19-223 bars review of the claims noted
above but erred by finding all claims were barred. Our remaining question is whether the
property owners were required to exhaust administrative remedies before filing their
surviving claims in the district court.
Were the property owners required to exhaust administrative remedies?
K.S.A. 60-907(a) states: "[I]njunctive relief may be granted to enjoin the illegal
levy of any tax, charge, or assessment, the collection thereof, or any proceeding to
enforce the same." K.S.A. 60-907(a) has long been held to allow review of an
administrative action taken
"without statutory authority or contrary to statutory authority or to action taken by an
administrative official or board which is permeated with fraud, corruption or conduct so
oppressive, arbitrary or capricious as to amount to fraud in connection with the levy of a
tax, charge or assessment." Mobil Oil Corporation v. Reynolds, 202 Kan. 179, Syl. ¶ 1,
446 P.2d 715 (1968).
Historically, Kansas courts only considered whether a petitioner alleged that the
levy, charge, or assessment occurred under these circumstances when asked to determine
whether jurisdiction exists under K.S.A. 60-907(a). See Blevins v. Board of Douglas
County Comm'rs, 251 Kan. 374, 382, 834 P.2d 1344 (1992); Dutoit, 233 Kan. at 999;
Mobile Oil Corporation v. McHenry, 200 Kan. 211, 234, 436 P.2d 982 (1968). But this
court's J. Enterprises decision altered the analysis to include recognition that most tax
claims must be determined first by the Board of Tax Appeals (BOTA) (now the Court of
Tax Appeals) under the doctrine of administrative remedies. Therefore, to establish
jurisdiction under K.S.A. 60-907(a), a plaintiff must not only allege an illegal tax as
defined by those earlier cases, but must also make certain the alleged illegality is not
administrative in nature because that would require exhaustion of administrative remedies
before allowing court review. 253 Kan. at 555.
In J. Enterprises, Harvey County assessed additional property taxes and a penalty
after determining the taxpayers improperly excluded some "rent-to-own" property from
their ad valorem personal property tax renditions. The taxpayers filed an action for
declaratory and injunctive relief in the district court pursuant to K.S.A. 60-907(a),
challenging the assessments. The district court granted an injunction after finding the
rent-to-own property was exempt inventory under K.S.A. 1992 Supp. 79-201m. The
County appealed. On its own motion, this court asked whether jurisdiction existed in light
of its recent holding in another tax case that stated:
"In the realm of taxes, matters of assessment, exemption, equalization, and
valuation are administrative in character. [Citation omitted.] Under Kansas law, it would
be unwarranted for a court to entertain a tax suit on any of these matters of administrative
expertise where administrative remedies had not been pursued." Dean v. State, 250 Kan.
417, 421, 826 P.2d 1372, cert. denied 504 U.S. 973 (1992).
After reviewing the existing statutory and regulatory scheme governing taxes,
which appointed BOTA as the "paramount taxing authority" in the state, the J.
Enterprises court held that the doctrine of exhaustion of administrative remedies applied
to claims raised under K.S.A. 60-907(a). This meant that a claim for injunctive tax relief
could only be filed directly with the district court if the plaintiff's claims were judicial in
character. If the plaintiff's claims were administrative in nature, they must be filed with
BOTA. We said this distinction maintained the proper relationship between the courts
and administrative agencies. J. Enterprises, 253 Kan. at 555.
The J. Enterprises court reconciled the exhaustion of remedies analysis with the
previous K.S.A. 60-907(a) cases by finding that a claim was judicial in nature if the
plaintiff alleged an official or board acted without authority or if their actions were
permeated with fraud, corruption, or conduct so oppressive, arbitrary, or capricious as to
amount to fraud. 253 Kan. at 559. When determining whether a claim is administrative or
judicial, the J. Enterprises court held jurisdiction under K.S.A. 60-907(a) depends on the
"nature of the actual relief sought." 253 Kan. at 555-56. Otherwise, a plaintiff could
bypass administrative review in nearly all cases simply by alleging the tax was "illegal."
253 Kan. at 556.
Applying these rules to the facts in that case, the J. Enterprises court looked
beyond the plaintiffs' facial claim that an illegal tax was imposed and emphasized that
none of the parties challenged the validity of the tax exemption statute. Instead, the
question before the court was whether the County erroneously interpreted that statute. It
then held that the plaintiffs' claim was not judicial in nature because the plaintiffs did not
assert the County had acted without authority, or that the action was arbitrary, oppressive,
or capricious. Instead, the claim was administrative in nature because it involved whether
an exemption applied, which required statutory interpretation. 253 Kan. at 560. As such,
jurisdiction did not arise under K.S.A. 60-907(a), and the case was dismissed for failure
to exhaust administrative remedies.
It is also important to note there is a distinction between the K.S.A. 19-223
analysis and the K.S.A. 60-907(a) analysis when it comes to the use of terms. Under a
K.S.A. 19-223 analysis, the terms "judicial," "administrative," and "legislative" describe
the nature of the governmental conduct, which in this case is the action by the Board.
Dutoit, 233 Kan. at 998-99 (K.S.A. 19-223 "affords jurisdiction when a board of county
commissioners has engaged in judicial or quasi-judicial action."). In a K.S.A. 60-907(a)
analysis, the terms "judicial" and "administrative" refer to the nature of the plaintiff's
claims. Admittedly, the use of the same terms in our caselaw is confusing and imposes a
more thoughtful consideration when determining whether K.S.A. 60-907(a) applies.
Accordingly, we must determine whether the nature of the property owners'
surviving claims as outlined above is judicial or administrative in character. To establish
jurisdiction under K.S.A. 60-907(a), a claim must allege the County either acted without
authority or that its actions were so arbitrary, oppressive, or capricious that they
amounted to fraud. See J. Enterprises, 253 Kan. at 559. The property owners' claims that
survived the jurisdictional bar of K.S.A. 19-223 as discussed above must be individually
examined to determine if any pass muster under J. Enterprises.
The claim that the Board exceeded its statutory authority in violation of the
County Home Rule Act, K.S.A. 19-101 et seq., when it enacted the self-help and
abatement remedy provisions in Section 6 of Resolution 2005-01 is clearly judicial in
nature because the property owners allege the Board acted without authority. And unlike
the claim in J. Enterprises involving a Board's interpretation of a tax exemption statute,
the property owners' claim here pertains to whether the County had authority to act as it
did by adopting Section 6 of Resolution 2005-01 under the County Home Rule statute.
This requires judicial analysis of K.S.A. 19-101d to determine the constitutionality of the
Board's resolution and actions.
The other claims stemming from the remaining miscellaneous attacks essentially
allege two wrongs because the property owners argue Resolution 2005-01 was
unconstitutional as applied to them and that the County's conduct was arbitrary and
capricious. These are the claims alleging the county environmental technician assured
them the County would not initiate its own cleanup as long as work was progressing,
shortly before they received a letter from the county counselor requiring compliance
within 21 days; and the County's decision to enter the property and begin work despite
the progress the property owners had made to comply with the order. Additionally, the
property owners claim the County engaged in arbitrary and capricious conduct because
the work performed exceeded any legitimate goals of abating dangerous conditions and
the County acted arbitrarily by beautifying the property. And even though the property
owners' claims could have been much better articulated, the nature of their claims clearly
assert that the County acted without any authority and/or the County's actions were
permeated with conduct so arbitrary and capricious that it amounted to fraud. We find
these claims are judicial in nature and could be filed directly with the district court
pursuant to K.S.A. 60-907(a).
In summary, we hold the property owners satisfied the jurisdictional burdens
under K.S.A. 60-907(a) on the following issues: (1) the County exceeded its statutory
authority in violation of the County Home Rule Act when the Board enacted the
Resolution's self-help and abatement remedy provisions; and (2) Resolution 2005-01 was
unconstitutional as applied, and the County engaged in arbitrary and capricious conduct
as noted above.
Normally, our holding would require remand to the district court to determine the
merits of the surviving claims, but the district court went beyond the jurisdiction question
and found for the County on the merits. The property owners appealed both decisions to
the Court of Appeals, but that court stopped short of considering the merits of any claims
when it found the entire case was jurisdictionally barred by K.S.A. 19-223. Since we
have found that the Court of Appeals erred in part in its jurisdictional ruling, we remand
to the Court of Appeals to determine whether the district court erred on the merits as it
relates to the surviving issues we have identified. The Court of Appeals must determine
whether the district court properly granted summary judgment on those claims that were
not jurisdictionally barred.
The decision of the Court of Appeals is affirmed in part, reversed in part, and
remanded with directions.
JAMES A. PATTON, District Judge, assigned.1
REPORTER'S NOTE: Pursuant to the authority vested in the Supreme Court by art. 3,
§ 6(f) of the Kansas Constitution, Judge Patton was appointed to hear case No. 99,609 to
fill the vacancy on the court created by the retirement of Chief Justice Robert E. Davis.