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Fagan v. Kan. Dep't of Corr.

Court of Appeals of Kansas.
Feb 15, 2013
294 P.3d 362 (Kan. Ct. App. 2013)

Opinion

No. 108,288.

2013-02-15

Michael R. FAGAN, Appellant, v. KANSAS DEPARTMENT OF CORRECTIONS, et al., Appellees.

Appeal from Butler District Court; Charles M. Hart, Judge. Michael R. Fagan, appellant pro se. Julie St. Peter, of Kansas Department of Corrections, for appellees.


Appeal from Butler District Court; Charles M. Hart, Judge.
Michael R. Fagan, appellant pro se. Julie St. Peter, of Kansas Department of Corrections, for appellees.
Before ARNOLD–BURGER, P.J., GREEN, J., and HEBERT, S.J.

MEMORANDUM OPINION


PER CURIAM.

Michael Fagan appeals from the district court's dismissal of his K.S.A. 60–513 action. He argues that the district court erroneously interpreted K.S.A. 75–5268 and K.S.A.2011 Supp 75–5211 by allowing the Kansas Department of Corrections (KDOC) to use an inmate's gross wages rather than the inmate's net wages as the basis for calculation of deductions from the inmate's employment income. KDOC argues that Fagan's claims accruing before October 21, 2008, are barred by the statute of limitations and that his claims subsequent to October 21, 2008, were subject to dismissal in the district court because Fagan failed to exhaust his administrative remedies. KDOC further argues that should this court reach the merits of Fagan's arguments, the cited statutes were properly interpreted by the district court. For the reasons set forth below, we affirm.

Facts

From January 7, 2005, to March 31, 2008, Fagan was employed in Century Manufacturing's private industry program at the El Dorado Correctional Facility. On January 12, 2004, Fagan signed a consent of employment, where he indicated he understood and agreed that deductions would be made from his earned wages including employer deductions and correctional facility deductions. The correctional facility deductions included a 25% of gross wage per pay period deduction for room and board and a 5% of gross wage per pay period deduction to be paid to the Crime Victim's Reparation Board for the purpose of victim compensation. Similarly, from August 2008 to January 2009, Fagan worked at Wichita Work Release Facility and was required to pay 25% of his gross wage to KDOC for room and board and 5% of his gross wage for victim compensation.

In October 2008, Fagan filed a grievance with KDOC regarding the disposition of compensation from his employment with Century and asking for the grievance to include the Wichita Work Release program when he completed the program. Fagan argued that KDOC Internal Management Policy and Procedure (IMPP) 04–109 “is not on the same footing as the K.S.A. 75–5268.” The KDOC unit team responded by attaching a copy of Fagan's consent to employment. Fagan asked that his grievance be forwarded to the Warden's office and the Warden's office determined that the Secretary of Corrections had not misinterpreted K.S.A. 75–5268. Fagan was not satisfied with the results of his grievance and appealed to the Secretary. The Secretary found the facility's response correctly addressed all issues Fagan raised in his grievance and no further action was taken.

On October 21, 2010, Fagan filed a complaint with the district court alleging that Secretary Werholtz approved and authorized the negligently promulgated IMPP 04–109 which implements K.S.A. 75–5268 and K.S.A. 75–5211(b). KDOC responded by filing a motion to dismiss. On February 13, 2012, the district court granted KDOC's motion to dismiss. Fagan timely appeals.

Statute of Limitations

KDOC argues that this court lacks jurisdiction to consider Fagan's claims which accrued prior to October 21, 2008, because they are barred by the 2–year statute of limitations under K.S.A. 60–513.

Time limits under the statute of limitations are not jurisdictional. See Board of Sedgwick County Comm'rs v. City of Park City, 293 Kan 107, 118–19, 260 P.3d 387 (2011), where the Supreme Court discusses the distinction between jurisdictional time limits and statute of limitations time limits. Unlike subject matter jurisdiction arguments which may be raised at any time, the statute of limitations is an affirmative defense which must be pled and proved or else the defense is waived. See K.S.A. 60–208(c); Diversified Financial Planners, Inc. v. Maderak, 248 Kan. 946, 948, 811 P.2d 1237 (1991); Mangus v. Stump, 45 Kan.App.2d 987, 998, 260 P.3d 1210 (2011), rev. denied 293 Kan. –––– (March 9, 2012).

KDOC raised the statute of limitations argument in its motion to dismiss, but the district court did not rule on the issue. When an appellee desires a review of rulings and decisions made by the district court, the appellee must file a cross-appeal; otherwise, the issue is not properly preserved. See K.S.A.2011 Supp. 60–2103(h); Cooke v. Gillespie, 285 Kan. 748, 755, 176 P.3d 144 (2008); Mid–Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 191–92, 106 P.3d 483 (2005) (appellee must file a cross-appeal to preserve an issue on appeal not raised by an appellant). Because KDOC did not cross-appeal the statute of limitations issue, this argument is not properly preserved for appellate review.

Failure to Exhaust Administrative Remedies

KDOC also argues Fagan's claims which accrued between October 31, 2008, and January of 2009 were subject to dismissal because Fagan failed to exhaust his administrative remedies. Recently, however, this court held that the failure of state prison inmates to comply with K.S.A. 75–52,138, requiring exhaustion of administrative remedies before filing suit, does not deprive the courts of subject matter jurisdiction. Chelf v. State, 46 Kan.App.2d 522, 532–33, 263 P.3d 852 (2011) (mandate issued October 27, 2011); see Ryser v. State, 295 Kan. 452, 284 P.3d 337 (2012). In any event, because KDOC did not cross-appeal this issue, it is not properly preserved for appellate review.

Interpretation of K.S.A. 75–5268(1)(a)

Fagan argues that KDOC's IMPP 04–109, which requires the warden or designee of each facility housing inmates engaged in noninstitutional employment to withhold monies for food and lodging at a rate of 25% of an inmate's gross pay per pay period, is contrary to K.S.A. 75–5268(1)(a) because the IMPP requires the 25% rate to be calculated from the inmate's gross pay rather than net pay. See IMPP 04–109 § V(B)(3). Fagan argues that K.S.A. 75–5268(1)(a) cannot reasonably be read to require that inmates' deductions be withheld from gross pay. Fagan argues that because an inmate is required to pay over to the Secretary “all monies received,” KDOC cannot take a percentage deduction of gross pay because the pool of money available is after-tax income. KDOC replies that the statute does not limit the Secretary's discretion to the inmate's net pay.

Interpretation of a statute is a question of law over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009).

K.S.A.2011 Supp. 75–5268, entitled “ Work release and job training programs; disposition of compensation,” provides:

“(1) Any inmate who is allowed to participate in such paid employment or in such job training or paid employment for which a subsistence allowance is paid in connection with such job training shall pay over to the secretary or the designated representative of the secretary all moneys received from such paid employment or job training except that, pursuant to rules and regulations adopted by the secretary of corrections, the inmate shall retain a stipulated reasonable amount of the money as the secretary or the designated representative of the secretary deems necessary for expenses connected with the employment or job training. The balance of the moneys paid to the secretary or the designated representative of the secretary shall be disbursed for the following purposes:

(a) A designated minimum amount of that money paid to the secretary shall be returned to the state general fund or to the political subdivision, federal government or community-based center for such inmate's food and lodging or, if the inmate is participating in a private industry program other than work release, the minimum amount collected shall be deposited to the correctional industries fund;

(b) transportation to and from the place of employment at the rate allowed in K.S.A. 75–3203 and amendments thereto;

(c) if any of the dependents of the inmate are receiving public assistance, a reasonable percentage of the inmate's net pay after deduction of the above expenses shall be forwarded to the court which ordered support for the dependent or, if there is no order, to the secretary of social and rehabilitation services;

(d) a reasonable percentage of the inmate's net pay after deduction of the above expenses shall be disbursed for the payment, either in full or ratable, of the inmate's obligations if such obligations relate to the care and support of the defendant's immediate family and have been reduced to judgment;

(e) after deduction of the above amounts, payment of a reasonable amount for costs assessed to the inmate pursuant to the code of civil procedure;

(f) to the clerk of the district court in which the crime occurred, payment of a reasonable amount pursuant to an order of restitution;

(g) payment of a reasonable amount into a savings account for disbursement to the inmate upon release from custody;

(h) after deduction of the above amounts, a reasonable percentage of the inmate's net pay shall be disbursed for the payment, either in full or ratable, of the inmate's other obligations acknowledged by the inmate in writing, as authorized by the secretary; and

(i) the balance, if any, shall be credited to the inmate's account and shall be made available to the inmate in such manner and for such purposes as are authorized by the secretary.” (Emphasis added.)

The plain language of this statute provides that a “designated minimum amount of that money paid to the secretary shall be returned ... for such inmate's food or lodging.” K.S.A. 75–5268(1)(a). In 2007, K.S.A. 75–5268(1)(f) was amended; however, the language in subsection (1)(a) was not changed. See K.S.A.2011 Supp. 75–5268(1)(a); L.2007, ch. 197, sec. 5. Nothing in the statutory language requires the designated minimum be computed in a certain way. Fagan would ask this court to read language into the statute, contrary to the principle that an appellate court “cannot read into the statute language not readily found there.” Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, 940, 218 P.3d 400 (2009). Rather, as the KDOC argues, the phrase “that money paid to the secretary” simply refers to the fund from which the deduction is to be drawn and does not limit the Secretary's discretion to net pay. In other provisions of K.S.A. 75–5268, the legislature specifically provided for deductions from the inmate's net pay. See K.S.A. 75–5268(c), (d), and (h). Had the legislature wished to so limit K.S.A. 75–5268(1)(a), it could have done so. When the legislature has shown it clearly knows how to do something, failure to do so suggests that it did not so intend. See State v. Nambo, 295 Kan. 1, 4–5, 281 P.3d 525 (2012); Zimmerman, 289 Kan. at 974.

The district court correctly found:

“The Kansas Department of Corrections has discretion regarding the deductions which will be taken from an inmate's pay check for payment of room and board.... K.S.A. 75–5268 does not specifically indicate the amounts of funds to be deducted from an inmate's pay for purposes of food and lodging and does not specifically indicate that the funds must be taken from the ‘net balance’ after taxes and other employer withholding has occurred.”

The district court's decision correctly interprets K.S.A. 75–5268(1)(a) and is affirmed.

Interpretation of K.S.A. 75–5211(b)

Fagan also argues the district court erred in finding K.S.A. 75–5211(b) allows the Warden to withhold 5% of an inmate's gross pay for victim compensation. See IMPP 04–109 § V(B)(8). Fagan argues K.S.A. 75–5211(b), when read with K.S.A. 75–5268, references monthly take home pay, not gross pay. The plain language of K.S.A. 75–5211(b), however, clearly disposes of Fagan's argument. K.S.A. 75–5211(b) provides:

“The secretary of corrections shall establish programs and prescribe procedures for withdrawing amounts from the compensation paid to inmates from all sources for the same purposes as are prescribed by K.S.A. 75–5268, and amendments thereto for moneys of work release participants, except that any inmate employed in a private industry program, other than work release, shall, in addition to the deductions specified in K.S.A. 75–5268, and amendments thereto, have deduction of 5% of monthly gross wages paid to the crime victims compensation fund or a local property crime fund for the purpose of victim compensation.” (Emphasis added .)

The statute is plain and unambiguous. An appellate court may not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. See Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271–72, 202 P.3d 7 (2009).

In 2008, K.S.A. 75–5211(b) was amended; however, the statute still clearly provides that the 5% deduction be taken from “monthly gross wages.” See K.S.A.2011 Supp. 75–5211(b); L.2008, ch. 91, sec. 1. Therefore, under the plain language of the statute, KDOC was authorized to deduct 5% from Fagan's gross wages for victim compensation and the district court did not err in dismissing Fagan's claim.

Child Support Analogy

Because the district court correctly interpreted the plain language of the statutes at issue, this court need not reach Fagan's second issue where he separately argues that the district court abused its discretion in analogizing the inmate wage deductions to the wage deductions required for the computation of child support. This analogy, even if incorrect, would have no impact on the outcome of the case because the district court correctly interpreted the statutes at issue.

Affirmed.


Summaries of

Fagan v. Kan. Dep't of Corr.

Court of Appeals of Kansas.
Feb 15, 2013
294 P.3d 362 (Kan. Ct. App. 2013)
Case details for

Fagan v. Kan. Dep't of Corr.

Case Details

Full title:Michael R. FAGAN, Appellant, v. KANSAS DEPARTMENT OF CORRECTIONS, et al.…

Court:Court of Appeals of Kansas.

Date published: Feb 15, 2013

Citations

294 P.3d 362 (Kan. Ct. App. 2013)