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Riedmiller v. Harness11/9/2001
Appeal from Shawnee District Court; CHARLES E. ANDREWS, JR., judge.
Affirmed.
This is an appeal by an attorney, Roger Riedmiller, who represented Cliford Leroy Crone, in a workers compensation case. Riedmiller appeals the district court's finding that it did not have jurisdiction in this workers compensation case. The ultimate question Riedmiller wants addressed is whether a blanket recusal should be entered prohibiting a certain administrative law judge (ALJ) from hearing any case in which Riedmiller is an attorney of record.
The facts of this case are not in dispute.
Riedmiller filed a workers compensation claim on behalf of Cliford Leroy Crone. During the course of the workers compensation case, Riedmiller, for reasons not relevant here, filed a motion requesting the ALJ to recuse himself from this and all other cases in which Riedmiller was the attorney of record. That motion was denied. Riedmiller then filed a request for review with the Workers Compensation Board (Board). The Board responded that it only had jurisdiction to consider final orders, awards, modification of awards, or preliminary hearing awards and thus denied Riedmiller's request for review of the motion to recuse. Curiously, however, the Board found that because the motion to recuse was addressed in the preliminary hearing order, it agreed to hear the appeal. (Whether the Board had jurisdiction to consider this question on appeal from a preliminary hearing is questionable. Because the Board never heard the issue on appeal we express no opinion on the issue.) Riedmiller simultaneously asked that his appeal be considered by the Director of the Division of Workers Compensation. The Director granted the request and heard the appeal.
However, before the Director could rule on the motion, the ALJ sent a letter to the Director asking that the case be reassigned to a different ALJ. Subsequently, the Director denied the request for a blanket recusal.
Riedmiller then filed a petition for judicial review in Shawnee County District Court pursuant to the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. The district court, without request by either party, found that this was essentially a workers compensation case and therefore the court lacked jurisdiction. Riedmiller then perfected this appeal.
The only question before this court is whether the district court was correct in finding it did not have jurisdiction over this case. " hether jurisdiction exists is a question of law over which [an appellate] court's scope of review is unlimited." Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000).
" n appellate court has the duty to question jurisdiction on its own initiative." State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999). Parties cannot confer jurisdiction by consent or by failing to assert lack of jurisdiction. Copeland v. Robinson, 25 Kan. App. 2d 717, 720, 970 P.2d 69 (1998), rev. denied 266 Kan. 1107 (1999)." Hughs v. Valley State Bank, 26 Kan. App. 2d 631, 633-34, 994 P.2d 1079 (1999).
"The right to an appeal in this state is neither a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases or in any manner, or it may be withdrawn completely. However, where the legislature has provided the right of an appeal, the minimum essential elements of due process of law in an appeal affecting a person's life, liberty, or property are notice and an opportunity to be heard at a meaningful time and in a meaningful manner." Nguyen v. IBP, Inc., 266 Kan. 580, 588, 972 P.
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