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77-617. Limitations on new issues. A person may obtain judicial review of an issue that was not raised before the agency, only to the extent that:

(a) The agency did not have jurisdiction to grant an adequate remedy based on a determination of the issue;

(b) the agency action subject to judicial review is a rule and regulation and the person has not been a party in adjudicative proceedings which provided an adequate opportunity to raise the issue;

(c) the agency action subject to judicial review is an order and the person was not notified of the adjudicative proceeding; or

(d) the interests of justice would be served by judicial resolution of an issue arising from:

(1) A change in controlling law occurring after the agency action; or

(2) agency action occurring or first reasonably knowable to the person after the person exhausted the last feasible opportunity for seeking relief from the agency.

History: L. 1984, ch. 338, § 17; L. 1987, ch. 184, § 4; L. 2009, ch. 109, § 27; July 1.

Law Review and Bar Journal References:

"Challenging and Defending Agency Actions in Kansas," Steve Leben, 64 J.K.B.A. No. 5, 22, 30 (1995).


1. Cited; party aggrieved by administrative ruling not free to pick and choose procedure in district court action to avoid administrative remedies. State ex rel. Smith v. Miller, 239 Kan. 187, 190, 718 P.2d 1298 (1986).

2. Cited; exhaustion of agency administrative remedies before petition for judicial review permitted examined. Expert Environmental Control, Inc. v. Walker, 13 Kan. App. 2d 56, 59, 761 P.2d 320 (1988).

3. Civil service board ruling as not res judicata against tort action brought under act against discrimination (K.S.A. 44-1001 et seq.) examined. Parker v. Kansas Neurological Institute, 13 Kan. App. 2d 685, 687, 778 P.2d 390 (1989).

4. Limitations on KDHR secretary to dismissal of complaint where no prohibited practice (K.S.A. 72-5430) exists examined. Garden City Educators' Ass'n v. U.S.D. No. 457, 15 Kan. App. 2d 187, 196, 805 P.2d 511 (1991).

5. Cited; whether act was plaintiff's exclusive remedy in multicount action resulting from administrative license suspension examined. Lindenman v. Umscheid, 255 Kan. 610, 617, 875 P.2d 964 (1994).

6. Cited; developmentally disabled adult's medicaid benefits terminated; exhaustion of state proceedings held non-applicable to remedial proceedings. Brown ex rel. Brown v. Day, 555 F.3d 882, 904 (2009).

7. Exhaustion requirement applies to administrative procedures, not to individual issues to be reviewed. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 204 P.3d 562 (2009).

8. Exhaustion of administrative remedies refers to administrative procedures not to issues. Rebel v. Kansas Dept. of Revenue, 288 Kan. 419, 204 P.3d 551 (2009).

9. Party cannot collaterally attack a final agency order in a civil enforcement action by the agency. State ex rel. Bremby v. Thorson, 42 Kan. App. 2d 188, 210 P.3d 132 (2009).

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