 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Pieren-Abbott v. Kansas Dep't of Revenue5/7/2004
Reversed and remanded.
These consolidated cases involve appeals by three individuals whose driver's licenses were suspended by the Kansas Department of Revenue (KDR). In Carolyn Pieren-Abbott's case the suspension resulted from her refusal to submit to alcohol testing after she was arrested for driving under the influence . In Michael K. Day's and Tony D. Earlywine's cases, the suspensions resulted from their alcohol test failures after they were arrested for driving under the influence.
Each individual filed a petition for review with the district court. Each petition was then dismissed on the basis that the court lacked subject matter jurisdiction. Specifically, the district courts ruled that K.S.A. 8-1020(o) requires that a person requesting judicial review of a driver's license suspension must timely serve a summons on KDR and that was not accomplished in these cases. The individuals appeal the dismissals to this court. We reverse and remand.
The relevant facts are not in dispute. In Pieren-Abbott's case, she timely filed her petition for judicial review and apparently mailed a copy to KDR at the same time. She never did file and serve a summons on KDR. Day and Earlywine timely filed their petitions for judicial review and also mailed copies to KDR at the same time. Day and Earlywine each filed and served a summons, but both did so more than 90 days after they had filed their petitions.
The appellants have adopted the arguments of each other. Highly summarized, they argue that service of a summons under K.S.A. 8-1020(o) is not required to obtain subject matter jurisdiction in the district court and it is the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., that controls the commencement of these cases. They further argue that if K.S.A. 8-1020(o) has any effect, it relates only to personal jurisdiction and KDR submitted itself to the court's jurisdiction by its participation in the litigation.
KDR argues that because K.S.A. 8-1020(o) and the KJRA are silent regarding the timing requirements for the service of a summons, the court must refer to the Code of Civil Procedure, K.S.A. 60-101 et seq., specifically K.S.A. 60-203(a) and (b) to determine the timeliness of the summons required in K.S.A. 8-1020(o). Those sections require that for a service of summons to relate back to the date of filing of a petition, it must be served within 90 days (court may grant additional 30 days if application made within original 90 days). Service of a summons outside of these time frames means the action is then considered filed as of the date of service of process rather than the date of filing of the petition. KDR then argues that the district court lacked subject matter jurisdiction in these cases. Specifically, it argues in Pieren-Abbott's case that she never commenced an action for judicial review. In Day's and Earlywine's cases, it argues that because service of process occurred more than 90 days after the filing of the petitions and without the court granting an extension, the petitions were not timely filed, i.e., within 10 days as required in K.S.A. 8-259(a).
A district court must have both subject matter and personal jurisdiction over the parties to act upon a claim for relief. Carrington v. Unseld, 22 Kan. App. 2d 815, 817, 923 P.2d 1052 (1996). Subject matter jurisdiction is the authority of a court to hear and decide a particular type of action. 22 Kan. App. 2d at 817. "Subject matter jurisdiction is vested by statute and cannot ordinarily be established by consent, waiver or estoppel. [Citation omitted.] When a court is without jurisdiction of the subject matter, its only permissible course
Page 1 2 3 4 Kansas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|