Opinion
No. 108,452.
2013-08-9
In the Matter of The EQUALIZATION APPEAL OF KRUEGER, Karen, for the Year 2011 in Woodson County, Kansas.
Appeal from Court of Tax Appeals. Karen J. Krueger, appellant pro se. Linda Terrill, of Property Tax Law Group, LLC, of Leawood, for appellee.
Appeal from Court of Tax Appeals.
Karen J. Krueger, appellant pro se. Linda Terrill, of Property Tax Law Group, LLC, of Leawood, for appellee.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Karen Krueger appeals the decision of the Kansas Court of Tax Appeals (COTA) adopting Woodson County's (the County) quality, condition/desirability/utility (CDU), and physical condition ratings and its multiple regression analysis (MRA) valuation of $56,900 for tax year 2011 for her residential property. For the reasons stated below, we affirm.
Facts
In 1991, Krueger purchased a 100–year–old house in Yates Center from her father and brother for $1,500. The Woodson County Appraiser gave the house a depreciation rating of “very poor” and appraised the house at $4,280, which was lowered to $2,500 for tax year 1992. After purchasing the house, Krueger began a long restoration project. In 1998, Krueger made significant improvements to the house, which led to a significant increase in the County's valuation to $28,810 for the 1999 tax year. See In re Equalization Appeal of Krueger, No. 105,775, 2012 WL 3822600, at *1 (Kan.App.2012) (unpublished opinion). Krueger then began a series of challenges to the County's valuation of the property, appealing the Board of Tax Appeals (BOTA) or the COTA valuation in tax years 1999, 2000, 2001, 2002, 2008, 2009, and 2010. See Krueger v. Board of Woodson County Comm'rs, 31 Kan.App.2d 698, 71 P.3d 1167 (2003), aff'd277 Kan. 486, 85 P.3d 686 (2004); In re Krueger, 2012 WL 3822600, at *1;Krueger v. Board of Woodson Co. Comm'rs, No. 93,361, 2005 WL 2495864, at *1 (Kan.App.2005) (unpublished opinion), rev. denied 280 Kan. 983 (2006). By 2010, both Krueger and the County agreed that her renovations were complete. In re Krueger, 2012 WL 3822600, at *2.
For tax year 2011, the County valued Krueger's property at $66,500 using a cost valuation method. The County also calculate4 the market value of the property as $64,100 and the MRA value as $56,900. In that same tax year, the County had begun using a different computerized mass appraisal system, which required different scales for the quality, CDU, and physical condition ratings than it had used in prior years. In valuing Krueger's property, the County used a CDU rating of “good,” just as it had in tax year 2010, but raised the property's quality rating from C to C+ and physical condition rating from “average” to “good” under the new scales without explanation.
At the informal meeting with the county appraiser, Krueger asked him to use the County's computerized mass appraisal system to calculate values for the property based on a CDU rating of “average +,” a quality rating of C-, and a physical condition rating of “average.” The appraiser refused.
Krueger appealed the 2011 valuation to the small claims hearing officer, who approved the County's CDU rating of “good” based on the property having been renovated. The hearing officer rejected Krueger's proposed valuation of $52,000, which she calculated based on the sales of other homes in Yates Center, upon finding that her analysis did not adjust for any differences in amenities between the properties. In addition, the hearing officer rejected the cost approach because the County only had used it in the past while the property was under construction and the renovations were complete. The hearing officer also rejected the sales comparison approach upon finding the comparable sales were too old and the County had no explanation for increasing the property's quality and physical condition ratings. Therefore, the hearing officer found the County's MRA valuation of $56,900 was the best indicator of value.
Krueger then filed an appeal with COTA. In her prehearing brief, she stated that she would have accepted the small claims hearing officer's valuation of $56,900 if it had ended this case and any future appeals, however, she argued the County's new ratings for tax year 2011 would inevitably necessitate appeals in future tax years whenever the county appraiser chose to use these ratings as the basis for imposing a higher valuation.
Prior to the COTA hearing, Krueger served the county appraiser with a subpoena duces tecum asking him to bring a property report card to the hearing with the revised valuations for the property based on her own requested ratings. The County's attorney objected to the subpoena duces tecum, stating that the county appraiser had none of the records described in the subpoena. The parties presented arguments on the subpoena duces tecum at the COTA hearing. Krueger argued that she did not have access to the County's computer program and that neither she nor an appraiser could have calculated the valuation of her house using her figures without it. Finding that the County was not required to generate or create a document in a subpoena request, COTA sustained the County's objection to the subpoena.
At the hearing on December 14, 2011, the county appraiser, Jerry Mentzer, testified on how the County valued Krueger's property. He stated that the property merited a CDU rating of “good,' comparing it to another property that was also completely renovated and also had a CDU rating of “good.” Krueger contacted Troy Shaffer, who was related to the former owners of a comparable house. Shaffer testified as to the renovation work he did on it and that the house sold for $58,000. He also testified as to his knowledge of the renovations in one of the comparable properties used by the County in its appraisal as well as properties Krueger proposed as comparable properties. Shaffer further opined that fixing the foundation problems on Krueger's house would be expensive, despite having never worked on Krueger's home personally. Krueger submitted her testimony in the form of an affidavit, on which she was cross-examined at the hearing by the County's attorney. Her testimony stated that she did not keep records on her renovation costs, described the renovations done to her property, and explained why she believed the property qualified for her proposed ratings. Krueger also stated that she had refused to allow the County to inspect the inside of her house unless they also inspected the homes of the comparable properties.
After the hearing, Krueger filed a response to the County's objection to the subpoena duces tecum, noting that one of the judges at the hearing had stated that COTA had requested similar information in other cases and arguing that COTA had the ability to change the property's ratings. Krueger also filed a posthearing brief summarizing her evidence in support of different ratings and requesting COTA to order the County to comply with the subpoena.
On June 14, 2012, COTA issued its order. It adopted the County's MRA valuation of $56,900 upon finding that Krueger “did not present any evidence to affirmatively show that the subject property is worth $52,000.” It held that the County's CDU rating and physical condition rating for the property were “supported by the only evidence available to the County, as well as this Court, that being mainly exterior appearances,” noting that Krueger's six photographs of the interior were undated and only showed small portions of the property. It also found that Shaffer's testimony had little bearing on the subject property's appraised value, especially since Krueger was “unable or unwilling to say how much was actually spent in renovating the subject property.” The order thus stated that “[w]hile a reduction in grade and CDU is requested, the evidence does not support such a reduction.” Therefore, COTA sustained the hearing officer's appraised value because it was “based on data derived from current market conditions and is supported by two other accepted valuation methods” and “[t]he County's evidence adequately supports the value shown.” COTA failed to address in its order whether Krueger was entitled to receive the revised valuations as requested in her subpoena duces tecum.
Krueger filed a petition for reconsideration, claiming that (1) the court's decision that the only evidence before it was exterior appearances was unreasonable, arbitrary, and capricious in light of the evidence she presented, (2) the court's findings were not based on substantial evidence when viewed in light of the record as a whole, (3) the panel of judges who issued the order was improperly constituted as a decision-making body, and (4) the court did not resolve an issue requiring resolution—whether Krueger is entitled to a revised valuation based on her requested ratings. That petition was denied on July 9, 2012, because COTA found “no evidence or arguments are offered that would persuade the Court that the original order should be modified or that reconsideration should be granted.”
Analysis
On appeal, Krueger raises the same four arguments she made in her petition for reconsideration: (1) COTA did not resolve the issue of whether she is entitled to a revised valuation based on her requested CDU rating of “average +,” quality rating of C-, and physical condition rating of “average”; (2) COTA's finding that there was no evidence supporting a reduction in the ratings was not based on substantial evidence when viewed in light of the record as a whole; (3) COTA's findings that the County was not allowed to inspect Krueger's property and that the only evidence before it was exterior appearances were unreasonable, arbitrary, and capricious; and (4) the panel of judges who issued the order was improperly constituted as a decision-making body.
Judicial review of COTA's rulings is governed by K.S.A.2012 Supp. 77–621. In re Equalization Appeal of Prieb Properties, 47 Kan.App.2d 122, 125, 275 P.3d 56 (2012). As applied here, this court must grant relief if it determines (1) COTA has not decided an issue requiring resolution, K.S.A.2012 Supp. 77–621(c)(3); (2) COTA's action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, K.S.A.2012 Supp. 77–621(c)(7); (3) COTA's action is otherwise unreasonable, arbitrary, or capricious, K.S.A.2012 Supp. 77–621(c)(8); or (4) COTA was improperly constituted as a decision-making body or subject to disqualification, K.S.A.2012 Supp. 77–621(c)(6). On appeal, the burden of proving the invalidity of COTA's action is on the party asserting the invalidity. K.S.A.2012 Supp. 77–621(a)(1).
In 2008, the Kansas Legislature replaced BOTA with COTA. L.2008, ch. 109, sec. 2; see K.S.A. 74–2433. Prior to that, our Supreme Court had held that BOTA is a specialized agency that exists to decide taxation issues and its decisions are given great weight and deference when it is acting in its area of expertise. However, if BOTA's interpretation was erroneous as a matter of law, appellate courts would take corrective steps. In re Tax Exemption Application of Central Illinois Public Services Co., 276 Kan. 612, 616, 78 P.3d 419 (2003). In addition, an appellate court exercises unlimited review on questions of statutory interpretation without deference to an administrative agency's or board's interpretation of its authorizing statutes. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010) (citing Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs., 290 Kan. 446, Syl. ¶ 2, 228 P.3d 403 [2010] ).
It is worth noting here the County's argument in response to Krueger's first three claims on appeal. The County contends that even if COTA had ordered the County to rerun the valuations through its computerized mass appraisal system using Krueger's suggested CDU, quality, and physical condition ratings, it would not have affected the MRA valuation adopted by the hearing officer and COTA. The County asserts, without explanation, that these ratings only affect the cost approach to value, which is not at issue here, so Krueger's first three arguments related to these ratings are irrelevant. Although there is no evidence in the record of how the MRA valuation is calculated, BOTA previously has explained:
“MRA stands for Multiple Regression Analysis, which is a statistical technique for estimating unknown data on the basis of known and available data. In mass appraisal, the unknown data is the fair market value and the known data consists of sales prices and property characteristics of comparable properties. The objective of the MRA is to model the relationship between property characteristics and value so that an estimate of fair market value can be estimated from the comparable sales. The actual calculation of the MRA is extremely difficult.... Because of the complex mathematics involved, a computer is used to make the calculations.” (Emphasis added.) In re Equalization Appeal of Voth, No. 94–8411–EQ, 1995 WL 865905, at *1 (Kan. Bd. Tax App.1995).
If the data used for the MRA calculations includes “sales prices and property characteristics of comparable properties,” then the CDU, quality, and physical condition ratings of the subject property must be accurate in order to select appropriate comparable properties that have the same ratings. Thus, we are not persuaded by the County's argument that Krueger's first three claims are irrelevant to this appeal.
Did COTA fail to decide an issue requiring resolution?
Krueger first claims on appeal that COTA failed to decide an issue requiring resolution—whether she was entitled to receive revised valuations generated by the County's computerized mass appraisal system using her suggested ratings.
Under K.S.A.2012 Supp. 77–621(c)(3), the Court of Appeals shall grant relief if COTA has not decided an issue requiring resolution. Krueger requested several times that the County provide revised valuations for her property using its computerized mass appraisal system based on her suggested ratings: at the informal meeting with the county appraiser, in her subpoena duces tecum prior to the COTA hearing, and in her posthearing brief. She raised the issue again in her petition for reconsideration.
Although Krueger appears to argue generally on appeal that COTA never decided this issue, COTA in fact did decide the issue when it ruled on the County's objection to the subpoena duces tecum. During the hearing, COTA heard arguments on the issue and sustained the County's objection to Krueger's subpoena. It specifically found that the County was “not required to produce or to generate or create a document ... in a subpoena request.” Thus, COTA did not address the issue in its order, having already ruled on it at the hearing. It also did not directly address the issue as raised in Krueger's petition to reconsider. However, COTA underscored its prior ruling on the subpoena duces tecum when it denied Krueger's petition, stating “no evidence or arguments are offered that would persuade the Court that the original order should be modified or that reconsideration should be granted.”
Even if COTA had not properly decided this issue, we find no merit to Krueger's claim that she is entitled to receive revised valuations generated by the County's computerized mass appraisal system using her suggested ratings. As a preliminary matter, there is no Kansas law or case that requires a party to create or generate new records in response to a request from a taxpayer or a subpoena. To that end, Kansas statutes only require a county appraiser to produce evidence to substantiate his or her valuation of a property during the appeal process. See K.S.A.2012 Supp. 79–1448; K.S.A.2012 Supp. 79–1606; K.S.A.2012 Supp. 79–1609. A county is also required to make all records of the county appraiser, the county board of equalization, and the director of property valuation relating to the identification and appraisal of real and personal property open at all reasonable times to public inspection. K.S.A. 79–1458. These statutes simply require a county to produce or make available existing records, not to create new records upon request.
Krueger argues that because she does not have access to the County's computer appraisal program and the county appraiser could not explain to her the method the computer used to calculate the valuations of her property, she cannot calculate the necessary proposed valuations for her appeal. She cites to an attorney general opinion citing the course manual prepared by the director of property valuation, which states that an appraiser should have certain documents and information available at the informal meeting because “the appraiser should be prepared to explain the valuation process to the taxpayer and how values generally are reached.” Att'y Gen. Op. No. 91–145, p. 1. However, the opinion uses the word “should,” not “must” as Krueger implies in her brief. Thus, although the County certainly should have explained the valuation process to Krueger, it was not required to. Moreover, the manual only states that the appraiser should explain to the taxpayer how values “generally” are reached. Att'y Gen. Op. No. 91–145, p. 1. Nowhere in the statutes or in this attorney general opinion is there a requirement that the exact process be detailed to a taxpayer so that he or she can create his or her own precise valuations. In addition, the opinion to which she cites also notes that although the manual recommends that specific records be made available, “records need only be provided upon request of the taxpayer or as necessary to defend values in the appeals process.” Att'y Gen. Op. No. 91–145, p. 3. Again, the use of the term “records” indicates preexisting documents, not documents that must be generated by a computer.
COTA is empowered to issue subpoenas duces tecum compelling witnesses to produce “records, books, papers and documents relating to any subject matter before the state court of tax appeals” under K.S.A.2012 Supp. 74–2437a. The process for issuing, responding to, and seeking protection from subpoenas is set out in K.A.R. 94–5–17 (2012 Supp.), which incorporates by reference provisions of the Kansas Rules of Civil Procedure dealing with subpoena practice. Under these provisions, subpoenas may be used to command production of documents and other evidence in the “possession, custody or control” of the person subpoenaed. K.S.A.2012 Supp. 60–234(a)(1)(A)–(B); K.S.A.2012 Supp. 60–245(a)(1)(A)(iii). The language of the discovery statutes indicate that only already-existing documents must be produced upon request.
Was COTA's finding that there was no evidence supporting a reduction in the ratings supported by substantial evidence?
Next, Krueger challenges COTA's finding that there was no evidence to support her requested reduction in grade and CDU. Specifically, she claims COTA “did not even mention, much less consider” the evidence in the record which contradicted this finding.
This court must grant relief if COTA's action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole. K.S.A.2012 Supp. 77–621(c)(7). The burden of proving the invalidity of COTA's action is on the party asserting the invalidity. K.S.A.2012 Supp. 77–621(a)(1). In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review. K.S.A.2012 Supp. 77–621(d). Under K.S.A.2012 Supp. 77–621(d), an appellate court's analysis of the case “ ‘in light of the record as a whole’ “ requires it to review the evidence both supporting and contradicting COTA's findings, examine the presiding officer's credibility determination, if any, and review the agency's explanation as to why the evidence supports its findings. Redd v. Kansas Truck Center, 291 Kan. 176, 182, 239 P.3d 66 (2010). To uphold a decision, the evidence in support of it must be substantial, meaning that a reasonable person could accept it as being sufficient to support the conclusion reached. In re Protests of Oakhill Land Co., 46 Kan.App.2d 1105, 1114, 269 P.3d 876 (2012). Additionally, to find a lack of substantial evidence, this court has said the decision must be “so wide of the mark as to be outside the realm of fair debate.” In re Equalization Appeal of Prieb Properties, 47 Kan.App.2d at 137, 275 P.3d 56.
During a COTA appeal, it is the duty of the county appraiser to produce evidence to demonstrate by a preponderance of the evidence the validity and correctness of his or her determination of the valuation of residential property. K.S.A.2012 Supp. 79–1609. No presumption exists in favor of the county appraiser with respect to the validity and correctness of such determination. K.S.A.2012 Supp. 79–1609.
In this case, the County used a CDU rating of “good” and physical condition rating of “good” in valuing Krueger's property for tax year 2011. COTA found that “[w]hile a reduction in grade and CDU is requested, the evidence does not support such a reduction .” Despite Krueger's claim that COTA dismissed her evidence with this single sentence, it in fact went on to specifically address much of the evidence she presented. It first noted that the only evidence available to the County and COTA was the exterior appearances of the property. It rejected Krueger's photographs of the interior of the house as insufficient to warrant any reduction, noting:
“The six photographs of the interior are not sufficient to warrant any reduction. The evidence does not show when the photographs were taken. These photographs show only two small portions of the subject property and do not address the condition of the rest of the subject property.”
This finding is supported by substantial evidence in the record. The only photos in Krueger's exhibits that show the interior of her house are not dated and are of close-ups of very small portions of the property—the stone foundation, a beam resting on cinder blocks, the sump pump, a corner of the cellar, and what appears to be 1 to 2 feet of a termite-damaged floor near the wall. A reasonable person could accept this evidence as being sufficient to support the conclusion reached by COTA that these photos do not support a reduction in the property's ratings. See Oakhill Land Co., 46 Kan.App.2d at 1114, 269 P.3d 876.
Next, COTA addressed the testimony of Krueger's only witness:
“The essence of Mr. Shaffer's testimony is that houses do not sell for the amount of money one spends in making renovations. What was spent in renovations of other properties and what they eventually sold for has little bearing on the subject property's appraised value. Furthermore in this case, the Taxpayer was unable or unwilling to say how much was actually spent in renovating the subject property despite the fact that she was acting as her own general contractor. Without that evidence, Mr. Shaffer's testimony has little persuasive value in determining whether the subject property is appraised at its fair market value.”
This finding is also supported by substantial evidence in the record that a reasonable person could accept as sufficient to support COTA's finding. See Oakhill Land Co., 46 Kan.App.2d at 1114, 269 P.3d 876. The transcript of the hearing shows that Shaffer's testimony described the renovation work done to his daughter and son-in-law's home at 205 W. Kansas, the amount the renovations cost, and the amount the home later sold for. Krueger herself testified that she did not keep records on her renovation costs.
Having reviewed the record, we acknowledge that Shaffer's testimony covered other topics not discussed by COTA. For example, Shaffer testified about the renovations done on the 501 S. Lincoln house used as a comparable property by the County in its calculations and about several of Krueger's other suggested comparable properties on Rutledge Street. But Shaffer's testimony in this regard actually supports COTA's finding that his opinion carried little weight in light of the record as a whole. Specifically, the renovations at the 501 S. Lincoln property already were included in the County's calculations. In addition, Krueger only supplied exterior photos of the Rutledge Street properties but no property report cards showing their assessed values, which would have allowed COTA to consider whether they should have been included in the valuation of her property. Shaffer also failed to testify as to the cost of those renovations or at what price those homes had sold. Although he speculated that leveling the floor of Krueger's home would be “[v]ery expensive,” Shaffer admitted on cross-examination that he was not an appraiser and had no training in an area that would assist COTA in deciding whether the County's CDU rating of “good” was accurate.
We readily acknowledge that some of the evidence presented by Krueger tended to contradict COTA's finding. For example, she presented evidence showing that other renovated comparable properties used by the County only had a CDU rating of “average” or “average +.” She also presented evidence that the 205 W. Kansas property cited by the County as a comparable properly with a “good” rating was not comparable because it had its floors replaced, unlike Krueger's property. However, the only evidence that Krueger's property needed to have its floors replaced came from Krueger's own affidavit. In addition, Krueger's own testimcny and affidavit regarding the poor condition of her foundation and unlevel floors does contradict COTA's finding. To that end, COTA was in the best position to determine the credibility of Krueger's testimony and evidently did not find it to be evidence worth considering absent supporting evidence of the home's interior condition.
Although COTA did not mention this contradictory evidence, there is no indication that it failed to consider it, as Krueger claims. In fact, COTA stated that it came to its conclusion “after careful review of all the evidence.” That evidence consisted of all the County's evidence, which included a list of houses in Yates Center close to the age of Krueger's house that have been given a CDU rating of “good” as well as the testimony of the county appraiser regarding the value of the property.
In sum, we find substantial evidence in light of the record as a whole to support the finding made by COTA that the evidence does not support such a reduction in the ratings of Kruger's property; thus, it cannot be said that COTA's finding is erroneous as a matter of law or “so wide of the mark as to be outside the realm of fair debate.” In re Equalization Appeal of Prieb Properties, 47 Kan.App.2d at 137, 275 P.3d 56; see Krueger, 31 Kan.App.2d at 702, 71 P.3d 1167.
Were COTA's findings that the County was not allowed to inspect Krueger's property and that the only evidence was exterior appearances unreasonable, arbitrary, or capricious?
In support of Krueger's claim of error on this issue, she asserts (1) COTA's finding that the County has not been allowed to perform an interior inspection of Krueger's home runs counter to the evidence and (2) COTA's finding that the only evidence available to the County and COTA concerning appropriate CDU and physical condition ratings was mainly exterior appearances is so implausible that it cannot be ascribed to a difference in view or the product of agency expertise.
This court shall grant relief if COTA's action was unreasonable, arbitrary, or capricious. K.S.A.2012 Supp. 77–621(c)(8). COTA acts arbitrarily or capriciously when its actions are overtly and patently in violation of the law or are unreasonable and without foundation in fact. Krueger, 31 Kan.App.2d at 702, 71 P.3d 1167. In addition, the Kansas Supreme Court has held that an action is unreasonable when it is without foundation in fact and that an action is arbitrary and capricious if it is unreasonable or lacks any factual basis. Sunflower Racing, Inc. v. Board of Wyandotte County Comm'rs, 256 Kan. 426, 431, 885 P.2d 1233 (1994). Essentially, the test under K.S.A.2012 Supp. 77–621(c)(8) determines the reasonableness of the agency's exercise of discretion in reaching its decision based upon its factual findings and the applicable law. Useful factors that may be considered include whether the agency's explanation of its action runs counter to the evidence before it and whether the agency's explanation is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Wheatland Electric Cooperative v. Polansky, 46 Kan.App.2d 746, 757, 265 P.3d 1194 (2011).
First, Krueger claims COTA's finding that the County “ ‘has not been allowed to perform an interior inspection’ “ of her property is not true. Specifically, Krueger argues COTA's finding runs counter to the evidence she presented establishing that she did offer to let the County inspect her property but only if it also performed interior inspections of the comparable properties. Krueger cites in her brief to a letter from the County requesting an interior inspection that she received in 2010 and her above reply, but neither of these documents is included in the record. However, Krueger did testify at the hearing that the County asked to inspect the inside of her home and she responded that it was welcome to do so if it also inspected the inside of the comparables.
COTA took Krueger's testimony into consideration when it concluded that she had not allowed the County to inspect the interior of the property, specifically noting in its order: “Only if the County would inspect the interior of its comparison properties, would the Taxpayer allow an interior inspection of the subject property.” Regardless of her reasons for failing to permit the County to do so, the undisputed fact remains that Krueger did not allow the County to inspect the interior of her home; thus, COTA's finding was not without foundation in fact and did not run counter to the evidence.
Second, Krueger asserts that COTA's finding that “the only evidence” concerning the quality and condition of the property that was available to the County and COTA was “ ‘mainly exterior appearances' “ is also untrue and so implausible that it cannot be ascribed to a difference in view or the product of agency expertise. In support of her assertion, she again cites to all of the evidence she presented in the record. As we already have acknowledged, the record contains evidence both supporting and detracting from COTA's finding that the property's ratings should not be reduced. Nevertheless, we find substantial evidence in light of the record as a whole to support the finding made by COTA that the evidence does not support such a reduction in the ratings of her property. Given the evidence before it, COTA reasonably exercised its discretion in reaching its decision in that it did not act in violation of the law and its decision had a foundation in fact. See Sunflower Racing, Inc., 256 Kan. at 445, 885 P.2d 1233;Krueger, 31 Kan.App.2d at 702, 71 P.3d 1167.
Was the panel of judges who issued the order improperly constituted as a decision-making body?
Finally, Krueger contends that the panel of COTA judges who issued the order below was improperly constituted as a decision-making body under K.S.A.2012 Supp. 77–621(c)(6) because only one of the three judges who were present at the hearing on December 14, 2011, signed the order issued on June 14, 2012. Krueger raised this issue below in her petition for reconsideration.
Krueger notes that she wrote to the judge who signed the order asking if the other two judges who joined in the decision had been confirmed at the time of the hearing, if they had listened to the tape recording or transcript of the hearing, and if they had been provided with certain documents in the record. She subsequently received a response from COTA stating the two judges were confirmed by the Senate on May 2, 2012, COTA's evidentiary hearings were recorded on CD's, and “[a]ll documents, exhibits, post hearing briefs, motions, and responses related to appeals are kept in the file and available for review.” Krueger observes that this response does not indicate whether the newly confirmed judges had actually reviewed the hearing transcript, CD, or the record.
An improperly constituted decision-making body is a ground for this court to grant relief from COTA's action. K.S.A.2012 Supp. 77–621(c)(6). Kansas law is not clear on what it means for a decision-making body to be “improperly constituted.” Nevertheless, K.S.A.2011 Supp. 74–2433(a) requires the vote of two COTA judges before a final order can be issued. COTA judges hold office until their successors are appointed and confirmed. In re Equalization Appeal of Prieb Properties, 47 Kan.App.2d at 128, 275 P.3d 56;K .S.A.2011 Supp. 74–2433(a). Thus, the judges that were present at Krueger's hearing in December 2011 were no longer in office at the time their successors signed the order in her case in June 2012 because those successors had been confirmed in May 2012. Therefore, the issue in this case is whether successor COTA judges may issue an order in a case for which they were not present at the hearing.
Krueger cites to Sunflower Racing, Inc., in which only one member of the five-member BOTA panel who issued the opinion was present during the entire time of the evidentiary hearing and only two of the other members were present for only part of the hearing. However, the court in that case never reached the issue raised by Krueger here, instead holding that the appellant was precluded from raising the issue on appeal because it failed to raise an objection at the hearing. 256 Kan. at 440, 885 P.2d 1233.
Nonetheless, we find some guidance in Kansas cases that have addressed the issue of whether a successor or substitute judge may hear a jury trial or issue orders on motions for a new trial where another judge was originally appointed to the case, as well as in the Kansas Rules of Civil Procedure. In Chandler v. Chandler, 92 Kan. 355, 361, 140 P. 858 (1914), the court noted the legislature had provided that a motion for a new trial shall not be granted simply due to a change in judges when the evidence is available so that the new judge has the facts before him or her. The statute referred to in Chandler was later replaced by K.S.A.2011 Supp. 50–263, which provides that if a judge before whom an action has been tried is unable, because of sickness, death, or other disability, to perform the court's duties after a verdict is rendered or findings of fact and conclusions of law are filed, any other judge sitting in or assigned to the court may perform those duties.
In addition, K.S.A. 43–168 provides that if a judge is unable to proceed with a jury trial, another judge assigned to the court may proceed with and finish the trial “upon certifying that he [or she] has familiarized himself [or herself] with the record of the trial.” In State v. Boyd, 27 Kan.App.2d 956, 961–62, 9 P.3d 1273,rev. denied 270 Kan. 900 (2000), a panel of this court considered the appropriateness of a substitution of a judge in the middle of a criminal trial. The court found that there is no prejudice to a defendant where the successor judge performs only ministerial acts and that a criminal defendant is not denied any constitutional right when the original trial judge is replaced by another judge who is thoroughly familiar with the record. 27 Kan.App.2d at 961–62, 9 P.3d 1273. The court then held:
“We agree with the general tenor of cases from other jurisdictions that to become ‘familiar’ with a trial record, the substituting Kansas judge should read or have read to him or her the testimony that has been presented and view the exhibits that have been admitted. Once this has been done, the judge should state for the record that he or she certifies that this has occurred.” 27 Kan.App.2d at 963, 9 P.3d 1273.
The primary concern in resolving each of these cases was whether the successor judge adequately familiarized himself or herself with the record before performing any judicial duties. In this case, the proceeding challenged by Krueger was an agency appeal—not a criminal or civil evidentiary proceeding—where the evidence and record were made available to the successor judges; thus, under Chandler and K.S.A.2011 Supp. 60–263, we conclude the successor judges could properly perform any duties of the court, including signing the order of the decision of COTA.
Affirmed.