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Sebelius v. LaFaver8/11/2000
Appeal from Shawnee district court; MARLA J. LUCKERT, judge.
Affirmed.
The district court ordered the Kansas Department of Revenue (KDR) to release confidential Kansas income tax records and information to the Kansas Workers Compensation Fund (Fund) that were requested pursuant to a subpoena issued by the Kansas Workers Compensation Director (Director) and an order of the administrative law judge (ALJ). KDR appeals, claiming that it is prohibited by K.S.A. 1999 Supp. 79-3234 from disclosing the income tax records requested by the Fund and that subpoenas issued by the Director or an ALJ are not "proper judicial orders" as contemplated by that statute.
The claimant in a workers compensation action pursuant to K.S.A. 44-532 impled the Fund alleging the claimant's employer did not have workers compensation coverage on the date of the claimant's alleged injury and the employer was financially unable to pay compensation. Under K.S.A. 44-532a, if an employer has less than a $20,000 total gross annual payroll, the employer is not required to provide workers compensation insurance. Under such circumstance, the Fund cannot be impled and required to pay compensation. K.S.A. 44-532a.
The Commissioner of Insurance is responsible for administering the Fund pursuant to K.S.A. 44-566a. To determine if the Fund was required to pay compensation, at the request of the Fund, the Director issued a subpoena duces tecum to the KDR Custodian of Records. The subpoena requested copies of the employer's state income tax records and employee withholding records. KDR asserted that it was prohibited from disclosing the tax records by statute and moved the ALJ to quash the subpoena issued by the Director. After a hearing, the ALJ ordered KDR to produce all the tax records requested in the subpoena.
KDR requested review of the ALJ decision by the Kansas Workers Compensation Board (Board). The Board determined that it was without jurisdiction to rule on the issue because the order was not an appealable order pursuant to K.S.A. 1997 Supp. 44-551(b)(1). The Board dismissed KDR's appeal.
After KDR's appeal was dismissed and it continued not to comply with the order of the ALJ to produce the subpoenaed records, the Fund filed a separate civil action in the Shawnee County District Court requesting an order compelling KDR to comply with the subpoena and produce the requested records. KDR argued it was prevented by statute from disclosing the income tax records, and because the Director and the ALJ are part of the executive branch of government, neither had judicial authority to issue the subpoenas.
First, KDR argued that the district court was without jurisdiction to review the question because, pursuant to K.S.A. 77-613, the action must have been filed within 30 days of November 12, 1997, the date it refused to provide the requested tax information. The district court pointed out that KDR's argument ignored the distinction between actions for judicial review and actions for civil enforcement of an agency action pursuant to the Act for Judicial Review and Civil Enforcement of Agency Action, K.S.A. 77-601 et seq. Actions for judicial review are governed by K.S.A. 77-606 to K.S.A. 77-623. K.S.A. 77-624 to K.S.A. 77-627 govern civil enforcement of an agency action. The provision relied upon by KDR, K.S.A. 77-613(d), related to a petition for judicial review of agency actions.
The district court noted that the relief sought in the petition was an order enforcing the order of the ALJ; therefore, the provisions of K.S.A. 77-613(d) did not apply to the Fund's petition, which sought enforcement of an order. The agency action to be reviewed was KDR's refus
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