199 P.3d 781 (Kan. 2009), 100,564, Friedman v. Kansas State Bd. of Healing Arts

Docket Nº100,564.
Citation199 P.3d 781, 287 Kan. 749
Opinion JudgeThe opinion of the court was delivered by JOHNSON, J.:
Party NameAmir M. FRIEDMAN, M.D., Appellant, v. The KANSAS STATE BOARD OF HEALING ARTS, Appellee.
AttorneyVirginia M. Friedman, of Swedesboro, New Jersey, argued the cause and was on the briefs for the appellant., Wm. Scott Hesse, assistant attorney general, argued the cause, and Diane L. Bellquist, of Kansas State Board of Healing Arts, was on the brief for the appellee.
Case DateJanuary 16, 2009
CourtUnited States State Supreme Court of Kansas

Page 781

199 P.3d 781 (Kan. 2009)

287 Kan. 749

Amir M. FRIEDMAN, M.D., Appellant,

v.

The KANSAS STATE BOARD OF HEALING ARTS, Appellee.

No. 100,564.

Supreme Court of Kansas.

January 16, 2009

Page 782

Syllabus by the Court

1. The determination of a district court's jurisdiction to consider a petition for judicial review of an agency's action is a question of law, subject to unlimited appellate review.

2. Judicial review and civil enforcement of any agency action under the Kansas Healing Arts Act, K.S.A. 65-2801 et seq. , shall be in accordance with the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq.

3. A petition for judicial review under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions may be filed only after exhausting all administrative remedies, except that an interlocutory review of a nonfinal agency action may be taken if: (a) It appears likely that the person will qualify under K.S.A. 77-607 for judicial review of the related final agency action; and (b) postponement of judicial review would result in an inadequate remedy or irreparable harm disproportionate

Page 783

to the public benefit derived from postponement.

4. The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA) is the exclusive remedy for all requested relief which an agency can grant under its authority. A request for relief which the agency is authorized to grant must be construed as a petition for judicial review subject to the KJRA, notwithstanding an attempt to label the pleading as a separate or independent action.

Virginia M. Friedman, of Swedesboro, New Jersey, argued the cause and was on the briefs for the appellant.

Wm. Scott Hesse, assistant attorney general, argued the cause, and Diane L. Bellquist, of Kansas State Board of Healing Arts, was on the brief for the appellee.

OPINION

JOHNSON, J.:

[287 Kan. 750] Amir Friedman, M.D., appeals the district court's rulings on his petition challenging the Kansas Board of Healing Arts' (Board) jurisdiction to initiate a disciplinary proceeding against his Kansas medical license. Friedman claims that the Board did not have subject matter jurisdiction because his medical license had expired when the disciplinary action was filed. The district court dismissed Friedman's attempted judicial review of agency action because he had not exhausted his administrative remedies, and found that Friedman had failed to show irreparable harm so as to merit an injunction. The Supreme Court transferred the case on its own motion.

In April 1999, the Board issued Friedman a license to practice medicine and surgery in the State of Kansas. That license remained active until March 6, 2006, when the Board granted Friedman's request to change his license designation to inactive.

Medical licenses must be renewed by June 30 of each year by filling out a renewal form and paying an annual registration fee. See K.S.A.2007 Supp. 65-2809(a); K.A.R. 100-15-1. Friedman did not file a renewal form or pay the annual fee. Accordingly, his license expired on June 30, 2006. Pursuant to K.S.A.2007 Supp. 65-2809(d), Friedman had 30 days after the June 30 expiration to effect the renewal or his medical license would automatically be canceled. Friedman did not effect the renewal, because he had moved his residence and medical practice to New Jersey.

On July 31, 2006, the Board filed a formal petition against Friedman in a disciplinary action, alleging three counts of unprofessional conduct, one count of falsifying a medical record, and one count of surrendering hospital medical privileges while under hospital investigation. On December 26, 2007, Friedman filed a motion to dismiss the disciplinary action, alleging that the Board did not have subject matter jurisdiction because his license was expired when the action was commenced. On January 29, 2008, an administrative law judge issued an order which, inter alia, denied Friedman's motion to dismiss.

Instead of appealing the administrative law judge's decision to the Board pursuant to K.S.A.2007 Supp. 77-527, Friedman filed [287 Kan. 751] a " Petition for Judicial Review, for Temporary Injunctive Relief and Permanent Injunctive Relief" in Shawnee County District Court. The Board subsequently filed a motion to dismiss, claiming that the district court did not have jurisdiction to consider the petition because Friedman had not exhausted his available remedies, as required by the KJRA, and further alleging that the Board has subject matter jurisdiction to initiate a disciplinary action against a licensee with an expired license.

The district court agreed that Friedman's petition for judicial review of the agency action was filed without having exhausted the administrative remedies and therefore should be dismissed. The court further found that, to the extent the petition asserted an independent action for an injunction, it should be denied because the Board did have jurisdiction to take action on Friedman's medical license on July 31, 2006, which was the last day on which Friedman could renew his license before it was automatically cancelled.

In appealing the district court's rulings, Friedman makes two claims: (1) Under Kansas

Page 784

law, the Board does not have jurisdiction over a physician whose license has expired unless that physician is then practicing medicine unlawfully; and (2) in Kansas, the exhaustion of administrative remedies is not a prerequisite for judicial review of an administrative agency's interlocutory order concerning the agency's jurisdiction. We take the liberty of commencing with the second claim, given that the outcome will impact whether we can review the merits of the first claim.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Petition for Judicial Review

The determination of a district court's jurisdiction to consider a petition for judicial review of an agency's action is a question of law over which this court has unlimited review. Back-Wenzel v. Williams, 279 Kan. 346, 347, 109 P.3d 1194 (2005). Subject matter jurisdiction is vested by statute and establishes the court's authority to hear and decide a particular type of action. Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 92, 106 P.3d 492 (2005). Accordingly, the interpretation of a statute is also subject to de [287 Kan. 752] novo review. Griffin v. Suzuki Motor Corp., 280 Kan. 447, 451, 124 P.3d 57 (2005).

Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel; a failure to object to the court's jurisdiction does not invest the court with the requisite subject matter jurisdiction. See Kansas Bd. of Regents v. Skinner, 267 Kan. 808, Syl. ¶ 5, 987 P.2d 1096 (1999). Moreover, if...

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44 practice notes
  • 227 P.3d 1010 (Kan.App. 2010), 102, 606, In re A.A.R.
    • United States
    • Kansas Court of Appeals of Kansas
    • March 26, 2010
    ...jurisdiction, this court cannot acquire jurisdiction over the subject matter on appeal. See Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009). Importantly, G.R.'s notice of appeal does not reference the January 28, 2009, journal entry as a subject of his a......
  • 261 P.3d 979 (Kan.App. 2011), 105,121, City of Salina v. Lara
    • United States
    • Kansas Court of Appeals of Kansas
    • October 21, 2011
    ...order, an appellate court does not acquire jurisdiction over the subject matter on appeal. Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009). In Kansas, the right to appeal is limited by what is provided by statute. State v. Gill, 287 Kan. 289, 293-94, 196......
  • 321 P.3d 37 (Kan.App. 2014), 109,720, Bicknell v. Jordan
    • United States
    • Kansas Court of Appeals of Kansas
    • March 28, 2014
    ...Grain Co. v. Kansas Corporation Comm'n, 292 Kan. 723, 728-29, 256 P.3d 867 (2011) (quoting Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 754, 199 P.3d 781 [2009], in pointing out on review of a decision rendered in an interlocutory appeal from nonfinal agency action, " th......
  • Getting to the Merits Kansas Appeals: Jurisdiction, Preservation, and More, 0419 KSBJ, 88 J. Kan. Bar Assn 4, 32 (2019)
    • United States
    • Kansas Bar Journal Nbr. 2019, January 2019
    • January 1, 2019
    ...by fling their petition in that court.”). [11] Sleeth, supra, note 3. [12] Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009); State v. Phinney, 280 Kan. 394, 400, 122 P.3d 356 (2005). [13] See Kan. Const., Art. 3, § 6(b). [14] Boar......
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41 cases
  • 297 P.3d 1180 (Kan.App. 2013), 107,763, Fyler v. Brundage-Bone Concrete Pumping, Inc.
    • United States
    • Court of Appeals of Kansas
    • February 22, 2013
    ...order, an appellate court does not acquire jurisdiction over the subject matter on appeal. Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 We hold the district court was without jurisdiction to order Brundage-Bone to submit this $50,000 claim as anything other ......
  • 321 P.3d 37 (Kan.App. 2014), 109,720, Bicknell v. Jordan
    • United States
    • Court of Appeals of Kansas
    • March 28, 2014
    ...Grain Co. v. Kansas Corporation Comm'n, 292 Kan. 723, 728-29, 256 P.3d 867 (2011) (quoting Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 754, 199 P.3d 781 [2009], in pointing out on review of a decision rendered in an interlocutory appeal from nonfinal agency action, " th......
  • Goldblatt v. Unified Government of Wyandotte County, 061617 KSCA, 116, 372
    • United States
    • Court of Appeals of Kansas
    • June 16, 2017
    ...lacks subject matter jurisdiction to consider the contents of the petition"); Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009) (stating the general rule that administrative remedies must be exhausted before judicial review is......
  • 396 P.3d 738 (Kan.App. 2017), 116,372, Goldblatt v. Unified Government of Wyandotte County/Kansas City
    • United States
    • Court of Appeals of Kansas
    • June 16, 2017
    ...to consider the contents of the petition" ); Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009) (stating the general rule that administrative remedies must be exhausted before judicial review is In summary, while we affirm the ......
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