Westboro Baptist Church, Inc. v. Patton

• Decision Date: 09 July 2004
• Docket Number: No. 90,625.,90,625.
• Parties: WESTBORO BAPTIST CHURCH, INC., Appellant, v. DAVID L. PATTON, In his Official Capacity as Chairman, Kansas Board of Tax Appeals; JILL A. JENKINS, In Her Official Capacity as a Member, Kansas Board of Tax Appeals; DWIGHT D. KEEN, In His Official Capacity as a Member, Kansas Board of Tax Appeals; and CALVIN T. ROBERTS, In His Official Capacity as a Member, Kansas Board of Tax Appeals, Appellees.
• Court: Kansas Court of Appeals

32 Kan.App.2d 941

93 P.3d 718

WESTBORO BAPTIST CHURCH, INC., Appellant, v. DAVID L. PATTON, In his Official Capacity as Chairman, Kansas Board of Tax Appeals; JILL A. JENKINS, In Her Official Capacity as a Member, Kansas Board of Tax Appeals; DWIGHT D. KEEN, In His Official Capacity as a Member, Kansas Board of Tax Appeals; and CALVIN T. ROBERTS, In His Official Capacity as a Member, Kansas Board of Tax Appeals, Appellees.

No. 90,625.

Court of Appeals of Kansas.

Opinion filed July 9, 2004.

Margie J. Phelps and Jonathon B. Phelps, of Phelps Chartered, of Topeka, for appellant.

Steve Phillips, assistant attorney general, and Phill Kline, attorney general, for appellees.

Before RULON, C.J., HILL, J., and WAHL, S.J.

Per Curiam:

The Westboro Baptist Church (WBC) appeals the dismissal of its action in the district court seeking declaratory or injunctive relief against members of the Board of Tax Appeals (BOTA). WBC sought an order requiring members of BOTA to respond to voir dire questions proposed by WBC in an action seeking tax exempt status for their 1995 Ford pickup truck. BOTA ruled that it had no statutory authority to respond to voir dire questions. WBC responded by filing an action for relief in the district court. The district court dismissed WBC's petition, finding it lacked subject matter jurisdiction because WBC failed to exhaust its administrative remedies and failed to take a proper appeal under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. The district court further found WBC failed to state a claim under 42 U.S.C. § 1983 (2000). We affirm. WBC is a Baptist church involved in what it describes as a controversial street ministry. As part of its religious ministry, WBC regularly pickets against homosexuality in public forums. The truck for which WBC filed an application for a tax exemption is used to transport picket signs for which WBC seeks a religious use exemption.

On December 3, 2001, BOTA member Susan M. Seltsam considered and granted an oral motion by WBC to disqualify herself from all further proceedings. WBC then filed a motion which requested all BOTA members to respond to voir dire questions which generally asked whether the members had ever made any statements, signed any written documents, or read any information regarding WBC's picketing activities.

On January 10, 2002, BOTA denied the request for written voir dire. WBC did not file a petition or motion for disqualification pursuant to K.S.A. 2003 Supp. 77-514(c) of the Kansas Administrative Procedure Act.

On January 22, 2002, WBC filed a motion to reconsider and a renewed motion for a stay. WBC generally argued it had a due process right to discover facts that might show bias before filing a motion pursuant to K.S.A. 2003 Supp. 77-514(c). BOTA denied reconsideration but held the matter of exemption should be stayed until the issue of the requested voir dire of individual board members is resolved through an interlocutory appeal.

On May 22, 2003, WBC filed a petition for mandamus, or declaratory or injunctive relief against four members of BOTA, seeking an order requiring them to answer the proffered voir dire questions. The petition also states a cause of action under 42 U.S.C. § 1983.

BOTA moved to dismiss due to lack of jurisdiction, K.S.A. 60-212(b)(1), and for failure to state a claim, K.S.A. 60-212(b)(6). The district court granted the motion to dismiss, finding no jurisdiction. The court held that WBC's proper remedy was an appeal under the KJRA. The court further found WBC had not exhausted its administrative remedies. In regards to WBC's 42 U.S.C. § 1983 claim, the court held that because WBC had failed to pursue available disqualification procedures under K.S.A. 2003 Supp. 77-514, WBC could not claim denial of due process.

WBC first claims the district court improperly dismissed its claim for lack of subject matter jurisdiction.

Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 (2002). In matters concerning a tax exemption, a party must exhaust its administrative remedies before resorting to the courts in an independent action. Tri-County Public Airport Authority v. Board of Morris County Comm'rs, 233 Kan. 960, 967, 666 P.2d 698 (1983). Whether a party is required to or has failed to exhaust its administrative remedies is a question of law over which the appellate court's review is unlimited. Miller v. Kansas Dept. of SRS, 275 Kan. 349, 353, 64 P.3d 395 (2003).

This matter was filed as a Chapter 60 petition for mandamus, or declaratory or injunctive relief against BOTA. By filing the petition, WBC was attempting to appeal the BOTA orders denying WBC's motion to have the board members respond to voir dire questions. The orders are interlocutory in nature. WBC recognizes that, in matters relating to tax exemptions, a party is required to exhaust administrative remedies by taking the matter before BOTA and, from there, timely seeking review of the ruling on the tax matter to this court.

K.S.A. 74-2426 provides two routes for review of BOTA orders — a KJRA appeal to this court or to the district court, depending on the type of case. The above statute does not provide for a collateral action under Chapter 60 such as WBC filed in this case. Because K.S.A. 74-2426(c) specifies a means of review of BOTA orders, no other means of review can be taken.

The KJRA is the exclusive remedy for review of agency actions unless the agency is specifically exempted by statute. K.S.A. 77-603(a); K.S.A. 77-606. BOTA has not been specifically exempted. In Kansas Sunset Assocs. v. Kansas Dept. of Health & Environment, 16 Kan. App. 2d 1, 3, 818 P.2d 797 (1991), this court affirmed a district court's dismissal of a Chapter 60 declaratory judgment action against the Kansas Department of Health and Environment as barred by the plaintiff's failure to comply with the procedural requirements of the KJRA. Similarly, in Farmers Banshares of Abilene, Inc. v. Graves, 250 Kan. 520, 522-23, 826 P.2d 1363 (1992), our Supreme Court affirmed the district court's dismissal of a Chapter 60 action seeking mandamus and injunctive relief against the Secretary of State. The court held that the plaintiff's exclusive remedy was through the KJRA. 250 Kan. at 523. Mandatory, injunctive, and declaratory relief are available through the KJRA when properly invoked. K.S.A. 77-622(b).

Our Supreme Court continues to recognize the KJRA as the exclusive means of review of an agency action. Schall v. Wichita State University, 269 Kan. 456, Syl. ¶ 15, 7 P.3d 1144 (2000). Because K.S.A. 74-2426 provides a process for review of BOTA's orders, either to this court or a district court in the context of a KJRA action, a separate action or claim for declaratory or injunctive relief is not available.

WBC improperly sought injunctive relief through the Chapter 60 action. BOTA is a quasi-judicial agency. In re Appeal of News Publishing Co., 12 Kan. App. 328, 334, 743 P.2d 559 (1987). A party's right to obtain review of decisions of a quasi-judicial body, even in those cases when a district court may have what is in effect appellate jurisdiction, is limited. Even where the courts have jurisdiction to review the quasi-judicial body's action in some form, the courts do not have jurisdiction to review alleged errors in an independent action such as the present one requesting declaratory and injunctive relief against BOTA. Ratley v. Sheriff's Civil Service Board, 7 Kan. App. 2d 638, 641, 646 P.2d 1133 (1982); Thompson v. Amis, 208 Kan. 658, Syl. ¶ 5, 493 P.2d 1259, cert. denied 409 U.S. 847 (1972). The courts will generally refuse to entertain an action for declaratory relief as to issues which are determinable in a pending action or proceeding between the same parties. 7 Kan. App. 2d at 640.

In Ratley, a county employee requested a hearing on his dismissal before the Sheriff's Civil Service Board. The Board's hearing began with preliminary discussion on who would bear the burden of proof and whether the hearings should be open to the public. Before the Board reached a substantive decision on whether to uphold the employee's dismissal, the employee filed a declaratory judgment action in the district court to obtain a determination as to the preliminary issues regarding the burden of proof and the public nature of the meetings. The district court granted the request for declaratory relief and entered a judgment. 7 Kan. App. 2d at 639. On appeal, this court reversed the district court's judgment granting declaratory relief, remanding with directions to dismiss for lack of jurisdiction, concluding that the district court erred in accepting a declaratory judgment action. 7 Kan. App. 2d at 643. We concluded that declaratory judgment actions are not appropriate when avenues of direct appeal from agency decisions are available. 7 Kan. App. 2d at 640-42.

WBC relies on a line of cases that generally hold that BOTA cannot decide due process issues; rather, it is limited to tax issues within its unique expertise. See J. Enterprises, Inc. v. Board of Harvey County Comm'rs, 253 Kan. 552, 565-66, 857 P.2d 666 (1993). However, the administrative process would be inefficient if BOTA was restricted to only the tax-related issues. Due process issues and procedural questions come up in many cases. If the parties sought a declaratory judgment for every procedural issue that arose, the process would be inefficient. An appeal to the district court should occur only after all issues related to the tax appeal have been addressed, including procedural issues.

Likewise, in Zarda v. State, 250 Kan. 364, 826 P.2d 1365, cert. denied 504 U.S. 973 (1992), which was relied on by WBC, the taxpayers attempted to bring a declaratory judgment action arguing that the alphabetically staggered registration system for cars was unconstitutional. The Zarda c...