Sander v. State

102 P.3d 1136, 278 Kan. 487, 2004 Kan. LEXIS 734
CourtSupreme Court of Kansas
DecidedDecember 3, 2004
DocketNo. 91,779
StatusPublished
Cited by3 cases

This text of 102 P.3d 1136 (Sander v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sander v. State, 102 P.3d 1136, 278 Kan. 487, 2004 Kan. LEXIS 734 (kan 2004).

Opinion

The opinion of the court was delivered by

Gernon, J.:

The State Self-Insurance Fund appeals the district court’s decision to disqualify administrative law judge (ALJ) Bruce [488]*488Moore from this case and any other case in which the claimant is represented by attorney Roger Riedmiller.

Lois Sander filed a workers compensation action against the State of Kansas and its insurer, the State Self-Insurance Fund (Fund). ALJ Moore was assigned as the ALJ to hear Sander’s case. During the course of the litigation, Sander has filed three motions to disqualify ALJ Moore.

In March 2001, Sander filed her first motion seeking to disqualify ALJ Moore from her case. ALJ Moore denied the motion. Sander then requested the Workers Compensation Board (Board) to review ALJ Moore’s denial and filed a petition to the Director of the Division of Workers Compensation seeking ALJ Moore’s disqualification. Both the Board and the Director denied Sander’s requests to disqualify ALJ Moore. Sander also filed a motion to disqualify ALJ Moore with the Shawnee County District Court, consolidating it with 11 other cases in which Sander’s attorney, Riedmiller, was seeking ALJ Moore’s disqualification. The district court ultimately dismissed the motions for lack of jurisdiction, and the Court of Appeals affirmed the dismissal. Cagle v. Kansas Dept. of Human Resources, No. 88,236, unpublished opinion filed June 14, 2002.

Sander filed her second motion to disqualify ALJ Moore in December 2001. After ALJ Moore denied Sander’s motion, Sander sought review of her motion by the Director of the Division of Workers Compensation. The assistant director affirmed ALJ Moore’s denial of Sander’s motion. Sander then sought review by the Board, and the Board affirmed the assistant director’s ruling. Sander appealed the Board’s decision to the Court of Appeals, but her appeal was ultimately dismissed for lack of jurisdiction.

In November 2001, the Court of Appeals issued Riedmiller v. Harness, 29 Kan. App. 2d 941, 34 P.3d 474 (2001), rev. denied 273 Kan. 1037 (2002), which involved an earlier attempt by Riedmiller to have ALJ Moore disqualified as the ALJ in one of his cases. In that case, Riedmiller filed a petition for review with the Shawnee County District Court regarding the ALJ’s denial of his motion for disqualification. The district court concluded that it lacked juris[489]*489diction. 29 Kan. App. 2d at 942. The Riedmiller court affirmed the district court, stating:

“Obviously, it would be preferable for the legislature to specifically set out the procedures for seeking the recusal of an ALJ and for appeals from the granting or denying of such motions. However, in the absence of such procedures the Board has the authority under its broad legislative mandate to review decisions of an ALJ granting or denying such motions. Although at this stage in the process, sending the matter back to the Board may frustrate the parties, the remedy lies with the legislature, not the courts.” 29 Kan. App. 2d at 946.

In response to Riedmiller, the legislature amended K.S.A. 44-523(e) to establish a procedure for the district court to review an ALJ’s decision regarding disqualification. The new statute became effective on July 1, 2002. L. 2002, ch. 122, sec. 7.

Sander filed the third motion to disqualify ALJ Moore immediately before the regular hearing was scheduled on September 4, 2003, without providing any notice to either ALJ Moore or the State and the Fund. After ALJ Moore denied the motion, Sander filed an affidavit with the Ellis County District Court seeking ALJ Moore’s disqualification. The district court concluded that Sander’s affidavit created a reasonable doubt concerning ALJ Moore’s impartiality and ordered that he be disqualified from Sander’s case. The district court stated that “the issue of bias pervades, and is such a distraction that an objective person would could [sic] not help but question the fairness of the entire proceedings.” However, the court denied Sander’s motion to disqualify ALJ Moore from any case in which a claimant is represented by Riedmiller.

Sander filed a motion requesting the district court to reconsider its decision regarding the blanket disqualification of ALJ Moore from any of Riedmiller’s cases. The Fund filed a motion to alter or amend the court’s decision to disqualify ALJ Moore from Sander’s case. Upon rehearing, the district court granted Sander’s motion for a blanket disqualification, and the Fund appealed.

On August 3, 2004, the Court of Appeals issued an order requiring the parties to brief the issue of whether the appellate courts have jurisdiction. On August 24, 2004, we transferred the case to this court on our own motion pursuant to K.S.A. 20-3018(c).

[490]*490In accordance with the Court of Appeals’ order, both parties briefed the issue of jurisdiction. The right to appeal is purely statutory. Without a statute authorizing an appeal, no appeal is available. Nguyen v. IBP, Inc., 266 Kan. 580, 588, 972 P.2d 747 (1999). An appellate court has a duty to question jurisdiction on its own initiative. If the record demonstrates that there is no jurisdiction for the appeal, the appeal must be dismissed. Cole v. Mayans, 276 Kan. 866, 870, 80 P.3d 384 (2003). The issue of appellate jurisdiction is a question of law over which this court has de novo review. Wichita Eagle & Beacon Publishing Co. v. Simmons, 274 Kan. 194, 205, 50 P.3d 66 (2002).

The district court’s jurisdiction for disqualifying an ALJ is found in K.S.A. 2003 Supp. 44-523(e), which provides in pertinent part:

“(1) ... If the administrative law judge refuses to disqualify the administrative law judge’s self, the party seeking a change of administrative law judge may file in the district court of the county in which the accident occurred the affidavit provided in subsection (e)(2). If an affidavit is to be filed in the district court, it shall be filed within 10 days.
“(2) If a party or a party’s attorney files an affidavit alleging any of the grounds specified in subsection (e)(3), the chief judge shall at once determine, or refer the affidavit to another district court judge for prompt determination of, the legal sufficiency of tire affidavit. If the affidavit is filed in a district court in which there is no other judge who is qualified to hear the matter, the chief judge shall at once notify the departmental justice for the district and request the appointment of another district judge to determin[e] the legal sufficiency of the affidavit. If the affidavit is found to be legally sufficient, the district court judge shall order the director to assign tire case to another administrative law judge or to an assistant director.”

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Cite This Page — Counsel Stack

Bluebook (online)
102 P.3d 1136, 278 Kan. 487, 2004 Kan. LEXIS 734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sander-v-state-kan-2004.