MEMORANDUM DECISION AND ORDER

The above matter comes before the Court on Kansas Human Rights Commission's (“Respondent”) Motion to Dismiss the City of Wichita's (“Petitioner”) Petition for Judicial Review. After careful consideration, the Court finds and concludes as follows:

FINDINGS OF FACT

1. Aaron Patterson, an African American citizen of Wichita, Kansas, was stopped, allegedly for failing to signal a turn, and then searched by officers of the Wichita Police Department (“WPD”) on August 24, 2005.

2. Patterson filed a complaint of racial profiling, which the Respondent investigated.

3. Pursuant to its investigation, the Respondent supplied the Petitioner with a series of recommendations on May 22, 2006. These recommendations related to reporting requirements for non-fruitful searches by WPD officers; non-supported traffic tickets; and department policies on the subject of racial profiling. The Respondent's Investigating Commissioner who reviewed Patterson's complaint also determined that there was probable cause to believe that racial profiling contributed to the August 24, 2005 traffic stop.

4. On May 26, 2006, the Petitioner filed a request for reconsideration with respect to these recommendations, which the Respondent denied.

5. On June 16, 2006, the Petitioner filed the instant Petition for Judicial Review.

6. In a separate and unrelated action, Patterson filed a civil action against the Petitioner on July 19, 2006 in the District Court of Sedgwick County alleging racial profiling.

STANDARD OF REVIEW

The Kansas Act for Judicial Review and Enforcement of Agency Action (“KJRA”), K.S.A. § 77-601 et seq., is the means by which the subject of an agency action may appeal that action. The KJRA gives the Petitioner the right to appeal the final order of an agency. An agency's final order may be overturned by this Court only if one of the following conditions is true: 1) the action of the agency or the statute or rule on which it is based is unconstitutional, facially or as applied; 2) the agency's action exceeded its jurisdiction; 3) the agency failed to decide an issue requiring resolution; 4) the agency has erroneously interpreted or applied the law; 5) the agency engaged in an unlawful procedure or failed to follow prescribed procedures; 6) the persons taking the action should have been disqualified from doing so, or were improperly constituted as a decision-making body; 7) the action was based on a finding of fact not supported by the evidence; or 8) the action was “otherwise unreasonable, arbitrary, or capricious.” K.S.A. § 77-621(c) (2006). The party seeking to establish that an agency action was invalid bears the burden of proving that invalidity. Southwestern Bell Tel. Co. v. Kansas Corporation Comm'n, 29 Kan. App. 2d 414, 418, 29 P.3d 424 (2001).

The standard of review for findings of fact by an agency is heavily weighted in the agency's favor. The findings of fact on which an agency action is based are not grounds for invalidating the action unless they are “not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court . . . .” K.S.A. § 77-621(c)(7). “In applying the substantial evidence test . . . courts may not reweigh the facts, try the case de novo, or substitute their own judgment even if they would have found differently. During this process, the courts are not concerned with evidence contrary to the agency findings, but must focus solely on evidence and all inferences to be drawn therefrom which support or tend to support the findings of the agency. They are to disregard any conflicting evidence or other inferences which might be drawn therefrom.” Blue Cross and Blue Shield of Kan., Inc. v. Praeger, 276 Kan. 232, 263, 75 P.3d 226, 246 (2003). A finding of fact by the agency is not considered to be unsupported by substantial competent evidence unless the agency's determination is so wide of the mark as to be outside of the realm of fair debate. Peck v. Univ. Residence Comm. of Kan. State Univ., 248 Kan. 450, 456, 75 P.3d 226, 246 (1991).

The standard of review for questions of law, such as the interpretation of a statute by an agency, is more evenhanded. The doctrine of operative construction states that an agency's interpretation of a statute is entitled to substantial judicial deference, and that the agency's interpretation should be upheld so long as there is a substantial rational basis for it. Trees Oil Co. v. State Corp. Comm'n, 279 Kan. 209, 226, 105 P.3d 1269, 1281 (2005). However, if the reviewing court finds that the agency's interpretation of the statute was erroneous and incorrect as a matter of law, then the court should take corrective steps. Id. An agency's findings on questions of law are persuasive, but not binding. Id.

CONCLUSIONS OF LAW

I. The Respondent's issuance of a probable cause finding and recommendations constitute “final agency action” for which the Petitioner is entitled to seek judicial review.

The threshold issue that the Court must dispose of before proceeding any further is whether the non-binding, advisory recommendations issued to the Petitioner by the Respondent on May 26, 2006 constitute final agency action from which a petition for judicial review may be made. The Court finds that they do. The Court's reasoning is explained below.

The Court's first inquiry is whether the Petitioner has satisfied the prerequisites to bringing a petition for judicial review under the Kansas Act for Judicial Review and Civil Enforcement of Agency Action (“KJRA”). The KJRA allows a party to petition this Court for judicial review of any final agency action, provided that the petitioner has standing, has exhausted his administrative remedies, and has timely filed for the petition. K.S.A. § 77-607(a) (2006). The parties do not dispute that these requirements are satisfied in the instant case.

These pre-conditions being satisfied, did the Respondent's issuance of recommendations to the Petitioner constitute “agency action” for purposes of the KJRA? Agency action is defined very broadly by K.S.A. § 77-602(b) as "(1) [t]he whole or a part of a rule and regulation or an order; (2) the failure to issue a rule and regulation or an order; or (3) an agency's performance of, or failure to perform, any other duty, function or activity, discretionary or otherwise." K.S.A. § 77-602(b)(1)-(3) (2006). The KHRC's actions fit well within the expansive scope of K.S.A. § 77-607(b)(3) – they could hardly fail to. Therefore, the Respondent's issuance of recommendations to the Petitioner constitutes agency action.

The Respondent engaged in agency action, but was it “final?” "Final agency action" is defined by K.S.A. § 77-607 in the negative - final agency action is any agency action other than non-final agency action. K.S.A. § 77-607(b)(1). Non-final agency action comprehends "the whole or a part of an agency determination, investigation, proceeding, hearing, conference or other process that the agency intends or is reasonably believed to intend to be preliminary, preparatory, procedural or intermediate with regard to subsequent agency action of that agency or another agency." K.S.A. § 77-607(b)(2). To paraphrase, the pertinent question is whether the Respondent intended that its issuance of recommendations to the Petitioner be followed by any other agency action by Petitioner or any other agency. The answer to this question is manifestly “no.” As the Respondent notes, it has no enforcement authority with respect to the recommendations it issues – its involvement in the matter that is the subject of the instant Petition for Judicial Review ceases after the issuance of its recommendations. The Respondent's brief contains no other indication that subsequent agency action, either by the Respondent or another agency, was contemplated. The agency action of the Respondent was therefore not “preliminary, preparatory, procedural or intermediate with regard to subsequent agency action of that agency or another agency”; rather, it was final. The Petitioner is entitled under the KJRA to its Petition for Judicial Review.

The arguments of the Respondent, though well-briefed, are without sufficient merit to support a finding by the Court in the alternative. The Respondent advances two primary lines of argument. First, the Respondent argues that its issuance of recommendations do not constitute a final agency order. K.S.A. § 77-607(b)(2) defines an order as “an agency action of particular applicability that determines the legal rights, duties, privileges, immunities or other legal interests of one or more specific persons.” The Court agrees; however, this conclusion does not preclude the Court's finding, as explained above, that the Respondent's issuance of recommendations nonetheless constituted a final agency action. An order is only one type of agency action, clearly not the only agency action.

The Respondent's second argument is that the Court should interpret “[f]inality . . . in a pragmatic way,” and proceeds with the support of persuasive authority from other jurisdictions. The Respondent's authority, however, is from jurisdictions that do not operate under the KJRA, and are not bound by its provisions. The KJRA unequivocally defines agency action and the conditions under which agency action is final. The examination of persuasive authority from other jurisdictions is therefore improper and unnecessary when the answer to the inquiry is present in the plain text of the statute.

II. The Petitioner's due process and equal protection arguments are predicated upon a reading of K.S.A. § 22-4610 that is inconsistent with the plain language of the statute.

The dispositive issue in the instant Petition for Judicial Review is whether the provisions of K.S.A. § 22-4610 unconstitutionally deprive an officer who is the subject of a racial profiling investigation by the Respondent of due process. It is true that K.S.A. § 77-621(c) provides that a reviewing court may overturn the decision of an agency if the statute upon which the agency's decision was unconstitutional on its face or as applied; however, the Court finds that the Petitioner's arguments are valid only when one adopts the Petitioner's particular reading of K.S.A. § 22-4610 – a reading that, as the Court will explain, is not altogether reasonable.

In order for this Court to find a due process violation, the Petitioner must establish that it was deprived of a protected interest in life, liberty, or property without at least notice and an opportunity to be heard. See Alliance Mortg. Co. v. Pastine, 136 P.3d 457, 464 (Kan. 2006). The Petitioner's due process argument proceeds by asserting that a police officer has a constitutionally protected liberty and property interest in her professional reputation, her employment, and the benefits that accrue with it. Additionally, it continues, due process is implicated under the circumstances of this case because K.S.A. § 22-4610 mandates that “if it is determined . . . as the result of the agency's investigation, that one or more officers are in violation of the [WPD's racial profiling policy, the WPD] 'shall' . . . discipline the officer” and thereby deprive her of a constitutionally protected liberty and property interest. Petitioner's Memorandum in Response to Respondent's Motion to Dismiss, at 6-7. Because K.S.A. § 22-4610 and related statutes make no provision for the officer subject to these sanctions to receive notice and be provided with an opportunity to be heard, concludes the Petitioner, the officer is deprived of due process.

The Petitioner appears to have constructed a solid argument. If the Petitioner's allegations are all accurate and true, then all the elements of a due process violation are, as enumerated above, present in the instant case. The foundation of Petitioner's argument, however, requires that the Court accept a particular reading of K.S.A. § 22-4610 that is not altogether consistent with that statute's plain language. Petitioner articulates K.S.A. § 22-4610(c)(5) so that officer discipline is the direct result of the Respondent's investigation into a racial profiling complaint: “. . . if it is determined . . . as the result of the agency's investigation, that one or more officers are in violation of the [WPD's racial profiling policy, the WPD] 'shall' . . . discipline the officer. . . .” Petitioner's Memorandum in Response to Respondent's Motion to Dismiss, at 6-7 (emphasis added). But this is not what the statute says – K.S.A. § 22-4610(c)(5) states that “if the investigation of a complaint of racial profiling reveals the officer was in direct violation of the law enforcement agency's written policies regarding racial profiling” the law enforcement agency “shall take appropriate action” that may include, but is not limited to, discipline. K.S.A. § 22-4610(c)(5) (2006) (emphasis added). The statute refers to “[t]he investigation” -- not the Respondent's investigation, or even, as the Petitioner proposes, any other agency's investigation. Presumably, if the legislature wanted disciplinary action to be taken against an officer as a direct result of the Respondent's investigation, or as a direct result of some other “agency's investigation,” it would have plainly said so. Therefore, the Court can not accept the Petitioner's reading of K.S.A. § 22-4610(c)(5) as requiring officer discipline as the direct result of the Respondent's investigation. Rather, the legislature's choice of words suggests that “investigation” may comprehend and include an external agency investigation, but is certainly not limited to it. The Petitioner can clearly conduct additional investigatory procedures, if necessary, to ensure that due process requirements are satisfied.

The plain language of K.S.A. § 22-4610 is also fatal to the Petitioner's other arguments. The Petitioner contends that “[t]here is nothing written into the statute or the agency's own rules and regulations which allows the individual officer or the municipality to seek review of [the Respondent's] decision.” Petitioner's Memorandum in Response to Respondent's Motion to Dismiss, at 7. Furthermore, continues the Petitioner, the statute does not “permit the municipality or the individual officer to utilize their own internal grievance procedures to review the decision.” Id. Neither K.S.A. § 22-4610, § 22-4611, nor related statutes appear to prescribe the review procedures to which the Petitioner refers, that much is true. However, the plain language of the statute permits the municipality and its police department to utilize their existing processes and procedures to ensure that any officer whose actions are the subject of an investigation by the Respondent (and, as discussed above, any subsequent investigation by Petitioner) is not deprived of a liberty or property interest without due process: “[I]f the investigation of a complaint of racial profiling reveals the officer was in direct violation of the law enforcement agency's written policies regarding racial profiling, the employing law enforcement agency shall take appropriate action consistent with applicable laws, rules and regulations, resolutions, ordinances or policies, including demerits, suspension or removal of the officer from the agency.” K.S.A. § 22-4610(c)(5) (emphasis added). Provided that the relevant procedures already in place within the WPD and related agencies provide the requisite process, the Petitioner's claim that K.S.A. § 22-4610 unconstitutionally violates due process can not be sustained.

The Petitioner's brief advances a handful of other arguments; however, they are uniformly founded upon the Petitioner's particular reading of K.S.A. § 22-4610(c)(5), and must therefore be rejected by this Court for that reason.

CONCLUSION

After carefully considering the evidence before it and the arguments of the parties, the Court grants the Kansas Human Rights Commission's Motion to Dismiss.

This order shall serve as the final order of the Court, no further journal entry being required.

IT IS SO ORDERED.

Dated this ____ day of October, 2006.