Opinion
No. 106,632.
2012-07-27
Eric SWANSON, Appellant, v. KANSAS DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, Appellee.
Appeal from Johnson District Court; Gerald T. Elliott, Judge. Linus L. Baker, of Stilwell, for appellant. Paula B. Hurt, staff attorney, of Kansas Department of Social and Rehabilitation Services, of Overland Park, for appellee.
Appeal from Johnson District Court; Gerald T. Elliott, Judge.
Linus L. Baker, of Stilwell, for appellant. Paula B. Hurt, staff attorney, of Kansas Department of Social and Rehabilitation Services, of Overland Park, for appellee.
Before MALONE, P.J., MARQUARDT, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
After the State Department of Social and Rehabilitation Services (SRS) found that Eric Swanson physically abused one of his children, he appealed to the Office of Administrative Hearings. During discovery, Swanson and SRS agreed that Swanson would have 20 days to mail his responses to SRS' requests for admissions, and if his answers were late, the presiding officer would deem the requests admitted as facts. Swanson did not mail his answers within the 20 days, and the presiding officer granted SRS' motion to deem the requests admitted and granted SRS's motion for summary judgment. On appeal, Swanson argues the presiding officer abused his discretion by refusing to accept his answers, which he claims to have mailed 1 day after the 20–day deadline. Affirmed.
SRS alleged that on July 13, 2010, Swanson physically abused one of his children. Consequently, SRS placed Swanson's name on the Kansas Central Child Abuse and Neglect Registry. Swanson, a pro se litigant, appealed SRS' finding to the Office of Administrative Hearings. Before his prehearing conference, Swanson completed a mandatory youth-services questionnaire in which he denied SRS' finding.
A prehearing conference was held on October 13, 2010; however, there is no transcript of that conference included in the appellate record. The prehearing order and notice of hearing stated clearly how discovery would proceed:
“SRS plans to submit requests for admission. It must do so by October 22, 2010. The appellant has 20 days to answer. The appellant also plans to propound requests for admission. He must do so by November 1, 2010. SRS has 20 days to answer. The 20 days is measured from mailing date to mailing date. If the answers are even one day late, then the requests for admission are deemed admitted.” (Emphasis added.)
SRS mailed its 18 requests for admission to Swanson on October 13, 2010. Swanson had until November 2, 2010, to mail his responses. Before the November date, Swanson served requests for admission on five persons, only one of whom—the SRS social worker who investigated the allegations of abuse—was a party to the case. Accordingly, the presiding officer later voided all requests for admission served on nonparties. See K.S.A.2011 Supp. 60–236(a)(1) (requests for admission may be served only on parties to the litigation).
Regardless, Swanson claims that he mailed his answers to SRS' requests for admission on November 3, 2010. Swanson had not requested an extension of time to file his answers.
According to the certificate of service in one set of answers, Swanson claims he mailed them to SRS on November 3, 2010. However, the verification section did not include Swanson's signature or a notarization. Swanson mailed SRS the same answers a second time with a November 10, 2010, certificate of service. Also, the verification section—dated November 5, 2010—included the required signatures and notarization. A photocopy included in the record on appeal shows that SRS received answers from Swanson on November 12, 2010.
On November 15, 2010, the presiding officer received SRS' motions to admit requests for admission and for summary judgment. The next day, the presiding officer sent a letter to Swanson, asking him to mail his responses to the SRS motions no later than November 26, 2010. On November 24, 2010, the presiding officer received new and more thorough answers from Swanson, who also objected to SRS' motions for admission and summary judgment.
Also on November 24, 2010, the presiding officer received Swanson's motion for leave to file his answers out of time. Notably, the motion states, “Despite appellant's best efforts, he was unable to meet the November 2, 2010 deadline. Response was submitted and mailed November 3, 2010. Appellant requests that the submission of November 3, 2010 be accepted.” SRS neither objected to this request nor argued that a late admission would prejudice its efforts to defend its substantiated finding against Swanson.
The presiding officer denied Swanson's motion for leave to file his answers out of time stating:
“At the October 13, 2010 prehearing, we discussed that both parties would propound requests for admission. Both parties were given different deadlines to do so. I asked you if 20 days was enough time to answer and you responded that 20 days was ‘sufficient .’ I told both you and [counsel for SRS] that if the answers were even one day late, they were considered admitted. These oral instructions were followed up with the written prehearing order.
“You admit you answered late. You state, ‘Despite appellant's best efforts, he was unable to meet the November 2, 2010 deadline.’ Yet you do not cite even one example of your ‘best efforts.’ Knowing that you were coming upon the deadline, you could have requested permission to amend the prehearing order before the deadline. Now, you are asking for forgiveness without reciting any due diligent efforts on your part where you attempted to comply with the November 2 deadline. If you are allowed to answer out of time that would effectively reward you for not following the rules.”
Not surprisingly, the presiding officer granted SRS' motions for admission and summary judgment, thus affirming SRS' finding that Swanson abused one of his children. Swanson filed a timely notice of appeal to the State Appeals Committee, which affirmed the presiding officer's order. Swanson then appealed to the district court, which again affirmed the previous rulings. Swanson filed a timely notice of appeal with this court.
Judicial action constitutes an abuse of discretion if the action: (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 135 S.Ct. 1594 (2012). Interpretation of a statute, however, is a question of law over which appellate courts have unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Swanson argues the presiding officer abused its discretion by refusing to permit him to file his answers 1 day after his mailing deadline had expired. Specifically, he argues that under K.S.A.2011 Supp. 60–236(b), acceptance of the late answers by the presiding officer would not have prejudiced SRS and would have promoted litigation on the merits of his administrative appeal, which resulted in summary judgment in favor of SRS.
Preliminarily, SRS argues that because Swanson is appealing an administrative decision, the parties were not bound by the rules of civil procedure.
Administrative appeals of a state agency's actions are subject to the Kansas Judicial Review Act (KJRA) unless those agencies are specifically exempted by the act. K.S.A. 77–602(a); K.S.A.2011 Supp. 77–603(a). Although appeals under this act may be subject to discovery in accordance with the rules of civil procedure, these rules are not mandatory:
“ Discovery shall be permitted to the extent allowed by the presiding officer or as agreed to by the parties. Requests for discovery shall be made in writing to the presiding officer and a copy of each request for discovery shall be served on the party or person against whom discovery is sought. The presiding officer may specify the times during which the parties may pursue discovery and respond to discovery requests. The presiding officer may issue subpoenas, discovery orders and protective orders in accordance with the rules of civil procedure.” (Emphasis added.) K.S.A.2011 Supp. 77–522(a).
The rules of civil procedure, however, may be used to supplement decisions under the KJRA when necessary to give effect to statutorily granted provisions. Pieren–Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 97, 106 P.3d 492 (2005).
Meanwhile, SRS proceedings are governed by Chapter 38, Article 22, of Kansas Statutes Annotated. Of these statutes, only K.S.A.2011 Supp. 38–2249 refers to the rules of civil procedure, specifying “the rules of evidence of the code of civil procedure shall apply” in all proceedings governed under the statutes cited above. Swanson, however, cites no statute, regulation, or judicial opinion to rebut SRS' claim that discovery would be subject to the provisions of the KJRA rather than the rules of civil procedure. Therefore, if the presiding officer did not abuse his or her discretion under K.S.A.2011 Supp. 77–522(a), then Swanson's principal argument fails because it relies on an inapplicable statute, K.S.A.2011 Supp. 60–236(b).
Under the KJRA, this court's scope of review is limited to one of eight scenarios. K.S.A.2011 Supp. 77–621(c). Only one of these scenarios—in which the action is arbitrary, capricious, or unreasonable—seems to apply here. See K.S.A.2011 Supp. 77–621(c)(8). Substantial competent evidence, however, strongly suggests the presiding officer's decision was not arbitrary, capricious, or unreasonable. Initially, Swanson had agreed to respond to SRS' requests for admission within 20 days, a deadline only 10 days shorter than the 30–day window generally afforded to civil litigants under K.S.A.2011 Supp. 60–236(a). Moreover, the presiding officer made clear that it would not tolerate late responses, and, in fact, expressly stated that if Swanson's answers were “even one day late, then the requests for admission are deemed admitted.” The number of the requests for admission was not onerous. Also, there are legitimate questions as to whether Swanson mailed his answers merely 1 day late on November 3, 2010, or as many as 10 days late, based on SRS receiving the answers on November 12, 2010. And finally, though Swanson argued he put forth “best efforts” to respond to the SRS requests in a timely manner, he did not articulate what those best efforts actually were. Therefore, substantial competent evidence demonstrates the presiding officer's ruling was not arbitrary, capricious, or unreasonable.
Affirmed.