Pieren-Abbott v. Kansas Dept. of Revenue, No. 90

• Decision Date: 18 February 2005
• Docket Number: No. 531., No. 90, No. 530, No. 165
• Citation: 279 Kan. 83,106 P.3d 492
• Parties: CAROLYN PIEREN-ABBOTT, Appellant, v. KANSAS DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES, Appellee. MICHAEL K. DAY Appellant, v. KANSAS DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES, Appellee. TONY D. EARLYWINE, Appellant, v. KANSAS DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES, Appellee.
• Court: Kansas Supreme Court

279 Kan. 83

106 P.3d 492

CAROLYN PIEREN-ABBOTT, Appellant, v. KANSAS DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES, Appellee.

MICHAEL K. DAY Appellant, v. KANSAS DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES, Appellee.

TONY D. EARLYWINE, Appellant, v. KANSAS DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES, Appellee.

Nos. 90,165, 90,530, 90,531.

Supreme Court of Kansas.

Opinion filed February 18, 2005.

Roger L. Falk, of Roger L. Falk and Associates, P.A., of Wichita, argued the cause, and Christopher Hughes, of the same firm, was with him on the brief for appellant Carolyn Pieren-Abbott.

Troy V. Huser, of Huser Law Offices, P.A., of Manhattan, was on the brief for appellants Michael K. Day and Tony D. Earlywine.

J. Brian Cox, of Legal Services Bureau, Kansas Department of Revenue, argued the cause and was on the brief for appellee. The opinion of the court was delivered by

LARSON, S.J.:

In these three appeals, we must decide if a licensee desiring to appeal to the district court from the administrative suspension of his or her driver's license must serve the Secretary of Revenue with a summons as is specifically required by K.S.A. 8-1020(o).

This issue raises the larger and overriding question of the applicability of the Code of Civil Procedure, K.S.A. 60-101 et seq., to appeals being taken under the authority of the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq.

Finally, if we decide a summons must be served and the Code of Civil Procedure applies, we must then determine if the filing of an answer to a licensee's petition by the Kansas Department of Revenue (KDR) without raising the contention of insufficiency of process or service of process waives such a defense.

Factual and Procedural Background

The KDR suspended the driver's license of Carolyn Pieren-Abbott for 1 year when she refused to submit to alcohol intoxication testing. She filed a petition for review of the KDR decision with the Sedgwick County District Court.

The KDR also suspended the driver's licenses of Michael K. Day and Tony D. Earlywine based on their failure of alcohol intoxication testing. Day and Earlywine filed petitions for review of the KDR decisions with the Riley County District Court.

Pieren-Abbott served the KDR with a copy of the petition for review by certified mail but did not serve the Secretary of Revenue or KDR with a summons or apply for an extension of the time to serve a summons. The KDR answered Pieren-Abbott's petition within 30 days of its filing but did not raise her failure to serve a summons on the Secretary of Revenue as a defense. Several months later, at the pretrial conference, the KDR requested leave to amend its answer to allege Pieren-Abbott failed to serve the Secretary of Revenue or KDR with a summons. The district court did not rule on the request, but the KDR filed a brief arguing the issue. Following a hearing, the district court dismissed Pieren-Abbott's petition for lack of jurisdiction. Pieren-Abbott appealed to the Court of Appeals.

Day and Earlywine served the KDR by mail. Within 21 days of the filing of each petition for review, the KDR filed an answer in each case asserting that neither Day nor Earlywine had served a summons on the Secretary of Revenue or KDR. Over 3 months after the petitions were filed and subsequent to the pretrial conference, both licensees served summonses on the KDR. Following briefing and a hearing, the district court dismissed both petitions for lack of jurisdiction. Day and Earlywine appealed to the Court of Appeals.

The Court of Appeals consolidated all three appeals and reversed both district courts, finding K.S.A. 8-1020(o) does not require service of a summons. Pieren-Abbott v. Kansas Dept. of Revenue, 32 Kan. App. 2d 763, 88 P.3d 1236 (2004).

We granted KDR's petition for review of all three cases.

Court of Appeals' Opinion and Contentions of the Parties

The arguments of the licensees before the Court of Appeals were basically similar. They argued: (1) The Code of Civil Procedure is not controlling in agency actions taken under the KJRA; (2) the commencement of the appeal is governed by the KJRA and, therefore, the lack of a summons does not affect jurisdiction; (3) the KDR has waived any procedural defects by its actions in all three appeals; and (4) requiring the service of a summons in a KJRA matter is compelling the performance of a futile act.

The KDR answered each of these contentions but principally argued that courts are required to follow the plain wording of K.S.A. 8-1020(o) that after July 1, 2001, requires that an appealing licensee "shall serve the secretary of revenue with a copy of the petition and summons." (Emphasis added.) KDR argued the inclusion of this mandatory language when a summons had not previously been required was a change in the law that must be recognized and followed.

As to the applicability of Chapter 60, the KDR pointed to Pittsburg State University v. Kansas Bd. of Regents, 30 Kan. App. 2d 37, 36 P.3d 853 (2001), rev. denied 273 Kan. 1036 (2002), where provisions of the Code of Civil Procedure were utilized to supplement the KJRA where necessary. The KDR noted Claus v. Kansas Dept. of Revenue, 16 Kan. App. 2d 12, 825 P.2d 172 (1991), which held that service requirements under the KJRA are mandatory and petitioners must strictly comply with them. The KDR argued it had not waived the defect of failure to serve a summons as the law required and that the specific statute, K.S.A. 8-1020(o), which requires a summons to be served, was a specific provision governing over any general enactments.

In its Pierren-Abbott decision, the Court of Appeals concluded that K.S.A. 8-1020(o) is inconsistent between its first line, which does not require a summons, and its second line, which does. The Court of Appeals further determined that K.S.A. 8-1020 is inconsistent with its own internal reference to other statutes like K.S.A. 8-259, K.S.A. 77-610, K.S.A. 77-613, K.S.A. 77-614, and K.S.A. 77-615 because none of these statutes require a summons. Although K.S.A. 8-1020(p) specifically provides that "[t]o the extent that this section and any other provision of law conflicts, this section shall prevail," the Court of Appeals concluded that 8-1020(o) was inconsistent and did not apply the section as written to effect its mandate requiring a summons to be served on the Secretary of Revenue. 32 Kan. App. 2d at 767-69.

The Court of Appeals relied on the legislative history to support its conclusion that K.S.A. 8-1020(o) does not require a summons. Noting that the legislature intended to enact harsher criminal and administrative penalties for those who drive under the influence of alcohol or drugs, the Court of Appeals stated that the inclusion of only one word, "summons," was not meant to change the jurisdictional requirements for reviewing an administrative decision to suspend a driver's license. The Court of Appeals further supported its conclusion by finding that K.S.A. 8-1020(o) requires a futile act because there is no purpose for serving a summons in judicial review proceedings. 32 Kan. App. 2d at 768. Finally, the Court of Appeals held that, absent a clear statement of intent to require a summons to be served, it would not impose such a condition. 32 Kan. App. 2d at 769. The Court of Appeals did not mention the licensee's waiver argument.

With this history of the three cases prior to our granting of the petitions for review, we turn to the arguments necessary to resolve this appeal.

First we must decide whether K.S.A. 8-1020(o) requires a licensee to serve the Secretary of Revenue with a summons to initiate judicial review of the KDR's decision to suspend his or her driver's license.

This issue requires the interpretation of statutes, and we apply an unlimited standard of review. Appellate courts are not bound by the district court's interpretation. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). In making our required interpretation, we are obligated to apply and follow rules of construction that govern our decision. We have stated:

"The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be." Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).

"Ordinary words are to be given their ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. [Citation omitted.]" GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).

"`When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.' [Citation omitted.]" State v. Gordon, 275 Kan. 393, 405, 66 P.3d 903 (2003).

"General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling. [Citation omitted.]" In re Estate of Antonopoulos, 268 Kan. 178, 189, 993 P.2d 637 (1999).

"`In construing statutes and determining legislative intent, several provisions of an act in pari materia must be construed together with a view of reconciling and bringing them into workable harmony if possible.' [Citation omitted.]" State v. Huff, 277 Kan. 195, 203, 83 P.3d 206 (2004).

"As a general rule, statutes are construed to avoid unreasonable results. There is a presumption that the legislature does...