Jenkins v. Newman Memorial County Hospital

• Decision Date: 12 May 1973
• Docket Number: No. 46744,46744
• Citation: Jenkins v. Newman Memorial County Hospital, 212 Kan. 92, 510 P.2d 132 (Kan. 1973)
• Parties: Beverly Andrews JENKINS, Appellee, v. The NEWMAN MEMORIAL COUNTY HOSPITAL, a corporation, Appellant.
• Court: Kansas Supreme Court

Page 132

510 P.2d 132

212 Kan. 92

Beverly Andrews JENKINS, Appellee, v.The NEWMAN MEMORIAL COUNTY HOSPITAL, a corporation, Appellant.

No. 46744.

Supreme Court of Kansas.

May 12, 1973.

Syllabus by the Court

1.Repeals by implication are not favored in the law and a former act will not be held to have been repealed by implication unless a later enactment is so repugnant to the provisions of the first act that both cannot be given force and effect.

2.The scope of judicial review provisions of K.S.A.1972 Supp. 44-1011 will not be construed to impose upon the judiciary the function of a trial de novo in the true legal sense in reviewing orders of an administrative agency.The legislature may not impose such power or duty upon the judiciary by reason of the separation of powers doctrine inherent in the Constitution of the State of Kansas.

3.The rehearing requirement of K.S.A. 44-1010, relating to procedure before the Kansas Commission on Civil Rights, is a reasonable procedural requirement in exhausting hausting administrative remedies before that commission and it is not repugnant to the scope of judicial review provisions set forth in K.S.A.1972 Supp. 44-1011.

4.The record in a judicial review sought in the District Court of Lyon County from an order in regard to discrimination entered by the Kansas Commission on Civil Rights is examined and it is held the appeal for judicial review in the district court was properly dismissed for failure to exhaust administrative remedies by neglecting to file a motion for rehearing as required by K.S.A. 44-1010.

John G. Atherton, of Mellinger, Atherton & Hurt, Emporia, was on the brief for the appellant.

David L. Ryan, Topeka, argued the cause, and Vern Miller, Atty. Gen., and Dennis W. Moore, Asst. Atty. Gen., were with him on the brief for the appellee.

FROMME, Justice:

The present appeal stems from a complaint of discrimination filed with the Kansas Commission on Civil Rights(the commission) under K.S.A.1972 Supp. 44-1005.Beverly Andrews Jenkins(the complainant) was a student nurse in a school of nursing being operated by The Newman Memorial County Hospital(the hospital) at Emporia, Kansas.She was terminated for academic reasons.The complainant charged she was denied readmission to the school by reason of her race.The matter was heard by the commission, discrimination was found and on March 20, 1971, the commission directed the hospital to readmit complainant as a student nurse.The hospital, without requesting a rehearing before the commission, as provided in K.S.A. 44-1010, filed an appeal inthe District Court of Lyon County for judicial review under the provisions of K.S.A.1972 Supp. 44-1011.The complainant and the commission joined in a motion to dismiss the appeal filed in the district court on the ground the court lacked jurisdiction over the subject matter because the hospital had failed to exhaust its administrative remedies by neglecting to file a motion for rehearing.The appeal was dismissed by the district court and the present appeal followed.

The rehearing provision of K.S.A. 44-1010 relating to procedures before the Kansas Commission on Civil Rights states:

'. . . No cause of action arising out of any order or decision of the commission shall accrue in any court to any party unless such party shall make application for a rehearing as herein provided. . . .'

It is readily apparent from the wording that the rehearing provision was not meant to be a mere permissive procedure.The judicial review sought by the hospital in the district court was under K.S.A.1972 Supp. 44-1011 which in part provides:

'The (district) court shall hear the appeal by trial de novo with or without a jury in accordance with the provisions of K.S.A. 60-238, and the court may, in its discretion, permit any party or the commission to submit additional evidence on any issue.Said appeal shall be heard and determined by the court as expeditiously as possible. . . .'

The hospital contends on appeal to this court that the rehearing provision in K.S.A. 44-1010 is unconstitutional insofar as it attempts to impose a limitation on judicial review.This contention is apparently based upon the separation of powers doctrine under which doctrine the legislature may not encroach upon judicial functions, and by the same doctrine judicial review over administrative functions is limited.The hospital further argues that the protection of individual rights from unlawful discrimination has been historically a function of the courts and is not subject to procedural restrictions by the legislature.We do not agree for such rehearing requirements have been generally upheld.

In the area of judicial review of administrative hearings the rehearing requirement of 44-1010, supra, is neither unique nor novel in Kansas.It is virtually identical to the procedural requirement which must be followed in hearings before other state agencies such as the state corporation commission (SeeK.S.A. 66-118b).In Graves Truck Line v. State Corporation Commission, 195 Kan. 82, 402 P.2d 757, this court said:

'An application for a rehearing is a prerequisite to a petition for review under the provisions of K.S.A. 66-118b, . . .

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'The purpose of an application for rehearing is to permit the Commission to correct errors which are called to its attention and thus avoid a judicial review and determination. . . .'(p. 85, 402 P.2d p. 760)

To the same effect, concerning K.S.A. 55-606, seeColorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 386 P.2d 266, appeal dismissed, 379 U.S. 131, 85 S.Ct. 272, 13 L.Ed.2d 333, where the court held in Syl. 1:

'A district court has no jurisdiction to review an order of the State Corporation Commission issued under the provisions of the Gas Conservation Statute, G.S.1949, 55-701 et seq., in the absence of a timely petition for rehearing as required by G.S.1949, 55-606.'

At page 11, 386 P.2d at page 275 of the opinion, the court said:

'. . . The statute makes the filing of a timely petition for rehearing a prerequisite to the filing of a petition for judicial review.

'The court had no authority to review the orders of the Commission except in the manner and to the extent the statute gave it such authority.(Cities of McPherson v. State Corporation Commission, 174 Kan. 407, 414, 257 P.2d 123.)

'In Continental Investment Corp. v. State Corporation Comm., 156 Kan. 858, 137 P.2d 166 it is stated:

". . . When a person has a grievance against an order or ruling of an official board, he must seek redress in conformity with the procedure prescribed by the pertinent statute.In this case, that procedure is laid down in G.S.1941 1941 Supp., 55-605, 55-606 . . .'(p. 868, 137 P.2d 166.)

'In United States v. (L. A.) Tucker Truck Lines, 344 U.S. 33, 36, 37, 73 S.Ct 67, 97 L.Ed. 54, the court stated the rule as follows:

"We have recognized in more than a few decisions, and Congress has recognized in more than a few statutes, that orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts. . . .'(See alsoF.P.C. v. Colorado Interstate Gas Co., 348 U.S. 492, 75 S.Ct. 467, 99 L.Ed 583.)'

Where an application for rehearing is required as a prerequisite to appeal and is not merely permissive the requirement is upheld as a condition precedent to an appeal.(2 Am.Jur.2d, Administrative Law, § 609, p. 448.)The rehearing requirement is no more than an effect to assure procedural order and efficiency in the relations between courts and administrative agencies.As such the requirement that a rehearing be sought does not deprive any aggrieved party of the opportunity for an appeal to the district court and, thus, cannot be said to contravene the doctrine of separation of powers.The legislature has full authority to establish procedural prerequisites to the exercise of jurisdiction by the district courts.Thompson v. Amis, 208 Kan. 658, 661, 493 P.2d 1259, cert. den., 409 U.S. 847, 93 S.Ct. 53, 34 L.Ed.2d 88, and cases cited therein.

It is clear the rehearing requirement is provided as a proper administrative law procedure in order to assure exhaustion of administrative remedies.The doctrine of exhaustion of administrative remedies is directed toward promoting proper relationships betweens the courts and administrative agencies charged with particlar administrative and regulatory duties.It promotes orderly procedure and requires a party to exhaust the administrative sifting process with respect to matters peculiarly within the competence of the agency.It requires avoidance of interference with functions of the administrative agency by withholding judicial action until the administrative process has run its full course.The failure to exhaust administrative remedies has often been emphasized as a ground for denying judicial review.It rests on sound considerations of comity and convenience, fully recognizing the separation of powers doctrine as set forth in our case law.(Colorado Interstate Gas Co. v. State Corporation Comm., supra;Graves Truck Line v. State Corporation Commission, supra;Strader v. Kansas Public Employees Retirement System, 206 Kan. 392, 479 P.2d 860, cert. den., 406 U.S. 914, 91 S.Ct. 2240, 29 L.Ed.2d 692.)

The doctrine of exhaustion of administrative remedies dictates that a remedy before an administrative agency provided by law must be sought and completed before courts will act.The doctrine is well established, is a cardinal principal of almost universal application, and must be borne in mind by the courts in construing a statute providing for review of administrative action.(2 Am.Jur.2d, Administrative Law, § 595, p. 426;Davis, Administrative Law Treatise, Ch. 20;Jaffe, Judicial Control of Administrative Action, Ch. 11.)

Much of appellant's argument is based upon statements in ...