CORRECTED OPINION

Nos. 109,577

 109,578

 109,579

 109,970

 109,971

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of Protest Appeals of 

LYERLA, KATHY L. LIV. TRUST, et al.,

for Tax Year 2011 in Johnson County, Kansas.

SYLLABUS BY THE COURT

1.

Neither K.S.A. 2011 Supp. 74-2433f(e) nor K.S.A. 2011 Supp. 74-2437 give the 

Court of Tax Appeals the authority to adopt regulations that would set jurisdictional 

requirements for parties appearing before it.

2.

If a timely notice of appeal is filed with the Court of Tax Appeals, the failure to 

have the proper party sign that notice does not deprive the Court of Tax Appeals of 

jurisdiction over the appeal. 

3.

Administrative agencies are created by statute, so they have only the powers 

granted by statute. The Court of Tax Appeals has no authority to determine the validity of 

contractual agreements between taxpayers and those hired by the taxpayers to represent 

them before the Court of Tax Appeals. Nor does the Court of Tax Appeals have authority 

to determine whether a party is engaging in the unauthorized practice of law or whether 

an attorney is violating attorney-ethics rules.
2

4.

Like any administrative agency exercising quasi-judicial authority, the Court of 

Tax Appeals may question its own authority or jurisdiction to hear a matter. Accordingly, 

the Court of Tax Appeals may take steps to determine whether the real party in interest is 

before it.

5.

On the facts of this case, where the judges of an administrative-law court have 

concluded that the representatives of a party lack credibility (one as a witness sworn 

under oath and the other as an attorney who must make truthful representations to a 

tribunal) and have conducted an inquisition on matters beyond the agency's jurisdiction to 

the detriment of the party, a reasonable person would lack confidence that the judges 

could provide a fair and impartial hearing. Accordingly, in this circumstance, the failure 

of these judges to recuse from further proceedings in the case would be unreasonable 

under K.S.A. 2013 Supp. 77-621(c)(8).

Appeal from Court of Tax Appeals. Opinion filed October 17, 2014. Reversed, vacated in part,

and remanded with directions.

R. Scott Beeler and Carrie E. Josserand, of Lathrop & Gage LLP, of Overland Park, and Linda 

Terrill, of Property Tax Law Group, LLC, of Leawood, for appellant taxpayers.

Kathryn D. Myers, assistant county counselor, of Olathe, for appellee Board of Johnson County 

Commissioners.

Before POWELL, P.J., LEBEN and ARNOLD-BURGER, JJ.

LEBEN, J.: Five taxpayers who appealed tax valuations to the Court of Tax 

Appeals saw their appeals dismissed by that body because their appeal notices had been 
3

signed by non-attorneys. In addition, even though the Court of Tax Appeals ultimately 

concluded that it had no jurisdiction to hear the appeals, it ruled in some of the cases that 

the contractual agreements between the taxpayers and those they hired to represent them 

before the Court of Tax Appeals (an attorney and a tax-appraisal firm) were void as 

against public policy. 

The taxpayers have appealed to this court, arguing that the Court of Tax Appeals 

should neither have dismissed their appeals nor addressed the validity of their contractual 

arrangements with the attorney and tax-consulting firm. We agree. Any problem with the 

signature on the appeal notices would have been a correctable matter, not a jurisdictional 

hurdle that should have prevented the Court of Tax Appeals from considering the 

appeals. And the Court of Tax Appeals has no statutory authority to determine the 

validity of contractual arrangements between a taxpayer and a third party the taxpayer 

hires to represent it. We therefore reverse the decision of the Court of Tax Appeals and 

remand these appeals for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Five separate tax appeals, all from Johnson County, have been consolidated into 

one appeal. In all five cases, the taxpayers appealed real-property valuations, and the 

Court of Tax Appeals dismissed the appeals for lack of subject-matter jurisdiction. All of 

the taxpayers are corporations, trusts, or some other form of artificial entity, i.e., they are 

not individuals owning property in their own name. And the notices of appeal for all the 

taxpayers were filed by non-attorneys who had been hired to assist with the tax appeals

but who were not otherwise employees or owners of the taxpayers.

Three of the taxpayers—the Kathy L. Lyerla Living Trust, MBS Barkley 1031, 

LLC, and ACDC Investments, LLC—filed their appeals in the small-claims division of 
4

the Court of Tax Appeals. The other taxpayers—Flik, Inc., and THF College Boulevard, 

L.L.C.—filed their appeals in the regular division of the Court of Tax Appeals. 

Flik and THF College Boulevard hired tax consultants (Property Tax Services, 

Inc., and Hollrah and Fricke, Inc., respectively) to handle their tax appeals. Non-attorney 

employees of those companies signed and filed the notices of appeal.

The other taxpayers all hired J.W. Chatam & Associates, Inc., a tax-consulting 

firm, to handle their tax appeals, and a non-attorney employee of Chatam signed and filed 

the notices of appeal for those taxpayers. When the taxpayers didn't get any relief from 

their tax assessments from the small-claims division, they each pursued a further appeal 

to the regular division. Attorney Linda Terrill filed a notice of appeal in the regular 

division for each taxpayer.

That summarizes the relevant history for the appeals of Flik and THF College 

Boulevard. But quite a bit more took place in the appeals involving the Lyerla Living 

Trust, MBS Barkley 1031, and ACDC Investments. 

In the appeal by the Lyerla Living Trust, Johnson County and Terrill reached an 

agreement to a reduced appraised value and submitted a proposed order reflecting that 

agreement. But the Court of Tax Appeals refused to consider the merits of any of these 

taxpayers' appeals or to accept the parties' agreement on the proper valuation for the 

property in the Lyerla case because it concluded that a non-attorney cannot sign the 

notice of appeal for a corporate or artificial entity. Based on that ruling, the Court of Tax 

Appeals concluded that none of the taxpayers had filed a timely appeal. 

The process leading to that ruling began when the Court of Tax Appeals issued an 

initial order on August 23, 2012, asking that these taxpayers show cause why their cases 

should not be dismissed for lack of jurisdiction. The orders said that the Court of Tax 
5

Appeals sought to determine the identity of the real party in interest in each case and 

whether the Court could properly exercise subject matter jurisdiction. On August 31, 

2012, the Court of Tax Appeals asked Terrill to provide the contracts between Chatam

and the taxpayers. It then held an extensive hearing (resulting in a 226-page transcript) on 

September 18, 2012. Most of the hearing focused on the taxpayers' relationships with 

Chatam and Terrill. 

The Court of Tax Appeals issued an order of more than 80 pages in each 

taxpayer's case on October 11, 2012. It concluded that it had no subject-matter 

jurisdiction because the appeal notices weren't properly signed. But the orders also made 

several other conclusions:

• That even though Chatam had a contingent-fee interest in the appeals, the 

taxpayers remained the real parties in interest in their tax appeals;

• That the written contracts between Chatam and the taxpayers were void as against 

public policy—specifically, that they were champertous (the result of "an officious 

intermeddler['s]" involvement in a lawsuit in exchange for part of the proceeds, 

Black's Law Dictionary 279 [10th ed. 2009]) but that the champertous nature of 

these agreements did not eliminate the Court of Tax Appeals' jurisdiction over the 

appeals;

• That if the Court of Tax Appeals had proper jurisdiction over the appeal, it would 

require that the taxpayers proceed without their chosen representatives (Chatam

and Terrill) because the court concluded that Chatam had engaged in the 

unauthorized practice of law, that Terrill had assisted Chatam in doing so, and that 

Terrill appeared to have violated several provisions of the Kansas Rules of 

Professional Conduct;

• That it found "general reasons to question the credibility of [Jerry W.] Chatam's 

testimony and Terrill's statements regarding whether or not the replacement 

decisions [replacing Terrill with another attorney in some cases] were 
6

economically motivated." (Jerry W. Chatam is a principal and owner of J.W. 

Chatam & Associates, which we generally reference in this opinion as Chatam.)

The taxpayers responded on October 29, 2012, with a request for reconsideration 

and a motion to strike at least those portions of the order that addressed issues involving 

attorney-ethics rules and the contractual relationship between the taxpayers, Chatam, and 

Terrill. The Court of Tax Appeals granted reconsideration, but on February 20, 2013, it 

issued a 175-page order in each case that reached the same basic conclusions as the 

earlier order. 

Some of the conclusions went further than the initial order. For example, the Court 

of Tax Appeals now concluded that Terrill had actually violated several of the attorneyethics rules, not merely appeared to have violated them. In addition, the court made 

extensive factual findings about why it did not find the testimony of Jerry Chatam or the 

representations made by Terrill at the September 18 hearing credible. 

We must note one other procedural item specific to these appeals. After the initial 

order of the Court of Tax Appeals, the taxpayers filed a motion on November 2, 2012, 

seeking the disqualification of each of the judges on the Court of Tax Appeals. The 

motion generally alleged bias against Chatam and Terrill "and thus a bias against 

Taxpayer." In support, Terrill submitted an affidavit stating that two members of the 

Court of Tax Appeals had filed an ethical complaint against her on October 4, 2012, 

before the court had reached its decision, alleging she had committed "possible 

violations" of ethics rules. The Court of Tax Appeals denied the recusal motion in an 

order issued November 27, 2012. That court found no legal basis for recusal. It also 

concluded that it was an independent body with no mechanism to provide substitute 

judges; accordingly, it concluded that the rule of necessity would require its judges to 

hear the appeals even if there were some valid basis for disqualification.
7

That completes the procedural background we find necessary to frame the issues 

we must decide. We should also note, though, that the 2014 Kansas Legislature has made 

changes to the statutes governing the Court of Tax Appeals. In fact, even the name of that 

tribunal has been changed—reverting back to its former name, the Board of Tax Appeals. 

See L. 2014, ch. 141. None of the parties to this appeal have filed anything with our court 

suggesting that these legislative changes should have any impact on the issues now 

before us. We have not considered those legislative changes and accordingly express no 

opinion on what impact, if any, they may have on remand.

ANALYSIS

I. These Tax Appeals Should Not Have Been Dismissed for Lack of Jurisdiction.

The starting point for our analysis is whether the Court of Tax Appeals was correct 

in dismissing the appeals for lack of subject-matter jurisdiction. Since there are some 

differences in the statutory provisions regarding the court's small-claims division and its 

regular division, we will discuss separately the appeals that began in each division.

For the appeals of MBS Barkley 1031, ACDC Investments, and the Kathy L. 

Lyerla Living Trust, which began in the small-claims division, we conclude that 

jurisdiction was proper based on our separate decision today in In re Tax Appeal of 

Rakestraw Brothers, 50 Kan. App. 2d ___ (No. 110, 219, this day decided). As we 

explain in greater detail there, a statute applicable to the small-claims division, K.S.A. 

2011 Supp. 74-2433f(f), provided that a taxpayer could appear there through a tax 

representative or agent. 50 Kan. App. 2d at ___, slip op. at 4-5. This statute provides that 

attorneys, certified public accountants, and a "tax representative or agent" may represent 

taxpayers in the small-claims division. Another subsection, K.S.A. 2011 Supp. 74-

2433f(e), provided that the notice of appeal be "in the form prescribed by the rules" of the 

Court of Tax Appeals. We concluded that a fair reading of these provisions together 
8

would allow any of the parties listed in subsection (f) to file the appeal notice, 50 Kan. 

App. 2d at ___, slip op. at 8-9, and that even if there were some problem with the 

signature, it would be a correctible error, not a jurisdictional defect. 50 Kan. App. 2d at 

___, slip op. at 9-10, 12. Based on the legal ruling we reached in Rakestraw Brothers, we 

conclude that the Court of Tax Appeals wrongly dismissed the appeals of MBS Barkley 

1031, ACDC Investments, and the Kathy L. Lyerla Living Trust.

We turn now to the appeals of Flik and THF College Boulevard, which were filed 

in the regular division. In that division, the provisions of K.S.A. 2011 Supp. 74-2433f(f) 

that allow non-attorneys to represent taxpayers do not apply. And Kansas administrative 

agencies "may require a corporation or other artificial person to participate by counsel." 

K.S.A. 77-515(c). 

But the rules of the Court of Tax Appeals allowed at least some non-attorneys to 

represent corporations or other artificial entities. One rule provided an authorized 

employee or officer of a corporation or entity could participate in proceedings on behalf 

of the corporation or entity, so long as the representative didn't engage in the practice of 

law. K.A.R. 94-5-6(b), (d) (2011 Supp.). The rule also gave the Court of Tax Appeals the 

option to require a corporation or other artificial entity to participate through an attorney. 

K.A.R. 94-5-6(e) (2011 Supp.). 

K.A.R. 94-5-6 (2011 Supp.), which we have just discussed, defines who may 

participate in a proceeding on behalf of an artificial entity: an employee or officer. A 

separate rule, K.A.R. 94-5-4(b) (2011 Supp.), provides that notices of appeal be "signed 

by the party or the party's attorney." Even if we assume that an artificial entity's employee 

or officer counted as "the party" under K.A.R. 94-5-4(b) (2011 Supp.), the signers of the 

notices of appeal for Flik and THF College Boulevard still wouldn't have had the 

authority to sign the notices since they weren't employees or officers of the taxpaying

entities. 
9

We are left, then, with timely filed notices of appeal signed by people not 

authorized under Court of Tax Appeals rules to do so. The question is whether this 

deprives the Court of Tax Appeals of jurisdiction over the appeals, and we conclude that 

it does not.

First, the requirements providing who may—and may not—sign a notice of appeal 

come only from Court of Tax Appeals regulations. As we explain in Rakestraw Brothers, 

an agency may not create a jurisdictional requirement for itself unless the legislature has 

specifically authorized it to do so, and nothing in K.S.A. 2011 Supp. 74-2437, the 

authorizing statute for K.A.R. 94-5-4 (2011 Supp.) and K.A.R. 94-5-6 (2011 Supp.), 

suggests that the Court of Tax Appeals has the authority to adopt jurisdictional 

requirements by regulation. See 50 Kan. App. 2d at ___, slip op. at 7-8. 

Second, the Court of Tax Appeals regulations make clear that the signature 

requirement is not jurisdictional. A separate provision of K.A.R. 94-5-4(b) (2011 Supp.) 

provides that "[i]f a pleading is filed with insufficient information or is otherwise 

deficient, the pleading may be rejected by the court or may be accepted by the court, with 

supplementation by the parties required by the court." (Emphasis added.) As we explain 

in Rakestraw Brothers, a provision giving the body discretion whether to accept a form 

that is deficient in some way is not a jurisdictional provision; if there's no jurisdiction, the 

court has no choice about whether to proceed. See 50 Kan. App. 2d at ___, slip op. at 9-

10. 

Third, another Court of Tax Appeals rule, K.A.R. 94-5-1(a) (2011 Supp.), 

provides that to the extent that other statutes do not specifically apply, the Kansas Code 

of Civil Procedure shall apply to proceedings in the regular division. That brings into 

play K.S.A. 2011 Supp. 60-211(a), which provides for striking an unsigned court paper

only if the failure to sign is not corrected after being brought to the party's attention. See 
10

Rakestraw Brothers, 50 Kan. App. 2d at ___, slip op. at 8. The failure to sign a notice of 

appeal does not deprive even a judicial court of jurisdiction over that appeal. Becker v. 

Montgomery, 532 U.S. 757, 760, 763-68, 121 S. Ct. 1801, 149 L. Ed. 2d 983 (2001).

So the failure to have a proper signature on the notice of appeal does not deprive 

the Court of Tax Appeals of jurisdiction over an appeal. Further, to the extent the Court 

of Tax Appeals had discretion in this case to dismiss these taxpayers' appeals under 

K.A.R. 94-5-4(b) (2011 Supp.), which states that nonconforming appeal notices "may be" 

rejected, we hold it was an abuse of discretion to dismiss the appeals without first giving 

Flik and THF College Boulevard an opportunity to correct these errors—just as a court in 

the judicial branch would be required to do. See Rakestraw Brothers, 50 Kan. App. 2d at 

___, slip op. at 9-10. We therefore conclude that the Court of Tax Appeals erred when it 

dismissed these appeals.

II. The Court of Tax Appeals Exceeded Its Authority When It Considered and Purported 

to Decide Matters Beyond Its Statutory Jurisdiction.

As we have set out earlier in this opinion, in addition to determining that it had no 

subject-matter jurisdiction, the Court of Tax Appeals also addressed several other matters 

in three of the appeals—including the validity of the contracts between the taxpayers and 

their representatives, whether the taxpayers' representatives had engaged in (or assisted 

in) the unauthorized practice of law, and whether the taxpayers' attorney had violated 

attorney-ethics rules. The taxpayers in those three appeals contend that the Court of Tax 

Appeals had no authority to address these issues. We agree.

Administrative agencies are created by statute, so they have only the powers 

granted to them by statute. See Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. 

Profs., 290 Kan. 446, Syl. ¶ 1, 228 P.3d 403 (2008). The powers of the Court of Tax 
11

Appeals are set forth in K.S.A. 2011 Supp. 74-2437, which authorizes it to hear tax 

appeals and to make the rules needed for handling those appeals:

"The state court of tax appeals shall have the following powers and duties:

"(a) To hear appeals from the director of taxation and the director of property 

valuation on rulings and interpretations by said directors, except where different 

provision is made by law;

"(b) to hear appeals from the director of property valuation on the assessment of 

state assessed property;

"(c) to adopt rules and regulations relating to the performance of its duties and 

particularly with reference to procedure before it on hearings and appeals; and

"(d) such other powers as may be prescribed by law."

In addition to that statute, K.S.A. 2011 Supp. 79-1609 and K.S.A. 79-2005 provide for an 

aggrieved taxpayer to appeal the appraised value of real property for real-estate tax 

purposes to the Court of Tax Appeals.

The issue for the Court of Tax Appeals to decide in each of these cases was 

whether the taxpayer's property value had been correctly assessed. In a property-valuation 

appeal, the determination of the proper assessed value is the only issue the Court of Tax 

Appeals is authorized to determine—with one exception. 

That exception applies to any administrative agency exercising quasi-judicial 

authority. Such a body, like the Court of Tax Appeals, may also question its own 

authority, or jurisdiction, to hear a matter. See Board of Meade County Comm'rs v. State 

Director of Property Valuation, 18 Kan. App. 2d 719, 726-28, 861 P.2d 1348, rev. denied 

253 Kan. 856 (1993). Because the Court of Tax Appeals in cases like these has 

jurisdiction only over appeals brought by taxpayers, it could properly investigate whether 

the taxpayers on whose behalf these appeals were filed were, in fact, the real parties in 
12

interest. See 18 Kan. App. 2d at 726-28. We therefore disagree with the taxpayers' 

separate contention that the Court of Tax Appeals could not make a real-party-in-interest 

determination. Our conclusion is supported by the statutory scheme, under which only the 

"taxpayer" has the right to appeal. See K.S.A. 2011 Supp. 79-1609 and K.S.A. 79-2005. 

The Court of Tax Appeals has the authority to determine the rights of the taxpayer, not 

anyone else. 

The Court of Tax Appeals ultimately concluded that these taxpayers were the real 

parties in interest in their appeals. Yet it proceeded to address the validity of the 

contractual agreements between the taxpayers and their representatives, the possible 

unauthorized practice of law, and possible violations of attorney-ethics rules. The court 

had no authority to do so:

• Nothing in the Court of Tax Appeals' statutory authority provides that it may 

determine the validity of contracts between taxpayers and third parties (tax 

representatives or attorneys) who are not even parties to the tax appeal. 

• Nothing in the Court of Tax Appeals' statutory authority provides that it may 

determine whether someone is practicing law without a license or whether an 

attorney has violated attorney-ethics rules. The Kansas Supreme Court has the sole 

power to regulate the practice of law, and it has cautioned that its authority will 

not be ceded to other branches of government. See State ex rel. Stephan v. Smith, 

242 Kan. 336, Syl. ¶ 12, 747 P.2d 816 (1987). The Court of Tax Appeals is an 

agency of the Executive Branch, K.S.A. 2011 Supp. 74-2433a, and it has no 

statutory authority over these matters. 

• None of these matters—even if true—would deprive the Court of Tax Appeals of 

jurisdiction over these appeals. Thus there was no basis for the Court of Tax 

Appeals to issue rulings about them.

We do not suggest that members of the Court of Tax Appeals are prohibited from 

reporting potential violations of attorney-ethics rules to the proper authorities. Indeed, 
13

lawyer members of the court may have a duty to do so under the Kansas Rules of 

Professional Conduct, KRPC 8.3 (2013 Kan. Ct. R. Annot. 653). But the Court of Tax 

Appeals as a body has no authority to decide such matters. Even an administrative agency 

exercising quasi-judicial powers has only the power the legislature has given it. Thus, 

while it may examine whether it has authority, or subject-matter jurisdiction, to consider 

an issue, it may not go into other unrelated matters that it isn't specifically authorized by 

statute to decide. See In re Tax Appeal of Trickett, 27 Kan. App. 2d 651, 656, 8 P.3d 18 

(2000). 

Our conclusion is reinforced by two additional points. First, key parties to these 

additional findings—Chatam and Terrill—were not parties to the case before the Court of 

Tax Appeals. Accordingly, no conclusion made by the Court of Tax Appeals could be 

binding upon them. Second, as the Connecticut Supreme Court concluded in Robertson v. 

Stonington, 253 Conn. 255, 259-63, 750 A.2d 460 (2000), even if there were some 

impropriety in the contractual arrangement between a taxpayer and its attorney or 

representative, public policy is best served by having the Court of Tax Appeals stick to 

tax matters, while leaving questions about the unauthorized practice of law or 

champertous agreements involving attorneys to the attorney-discipline process. 

As the Connecticut court noted, two public policies are at issue—"the public 

policy against the unauthorized practice of law, and the public policy in favor of fair and 

accurate taxation." 253 Conn. at 260-61. The court noted that "no public policy . . . 

discourages bringing valid tax appeals" and that there was no evidence in its case that the 

tax-consulting firm involved there "promotes frivolous tax appeals." 253 Conn. at 261. 

The court then noted that the tax-consulting firm was not a party to the tax appeal, so that 

"[i]t would be inappropriate . . . to make [an unfavorable] determination about [its] 

actions because [it] is not a party to the action before this court, and is not in any position 

to defend [itself] against the defendant's accusations." 253 Conn. at 261. Accordingly, the 

court held that whether the tax-consulting firm was engaging in the unauthorized practice 
14

of law was an issue for disciplinary authorities and not for the tax-appeal process. 253 

Conn. at 261-63. 

Here too, the Court of Tax Appeals has expertise and authority over tax matters, 

not champerty, the unauthorized practice of law, or attorney-ethics rules. No impropriety 

in the arrangements between the taxpayers and its representatives would remove the 

government's obligation to tax fairly. See Robertson, 253 Conn. at 263. The Court of Tax 

Appeals' authority did not extend to the validity of the arrangements between the 

taxpayers and their representatives (and attorney) or to attorney-ethics compliance. 

Accordingly, we reverse and vacate its findings and rulings on these subjects, including 

the ruling that in the event these appeals were to proceed, the taxpayers would have to be 

represented by different counsel, representatives, or both.

III. The Judges of the Court of Tax Appeals Who Previously Ruled on the Appeals of 

Three Taxpayers Should Be Recused from Further Participation.

The three taxpayers discussed in the preceding section (the subject of extensive 

findings that we found beyond the Court of Tax Appeals' jurisdiction) moved to 

disqualify each of the three judges on the court after it issued its initial ruling. These

taxpayers argued that these judges instituted broad proceedings beyond the court's 

authority, interfered with the taxpayers' choice of counsel and tax representative, and

made credibility findings about the attorney and tax representative that would cause a 

reasonable person to question whether these judges would give the taxpayers a fair 

hearing. The judges denied the motion to disqualify themselves.

Judges of the Court of Tax Appeals are required to follow the Kansas Code of 

Judicial Conduct. K.S.A. 2011 Supp. 74-2433(a); see Rule 601B (2013 Kan. Ct. R. 

Annot. 725). It requires that a judge be disqualified if the judge's "impartiality might 

reasonably be questioned" or when the judge "has a personal bias or prejudice concerning 
15

the party or the party's lawyer." Rule 2.11(A)(1) (2013 Kan. Ct. R. Annot. 741). Personal 

bias does not include views held by a judge based on matters that arise during litigation 

or views on legal issues. State v. Foy, 227 Kan. 405, 411, 607 P.2d 481 (1980). But a 

hostile feeling, antagonism, or animosity toward one of the litigants or their attorney is a 

personal bias requiring disqualification. 227 Kan. at 411; see State v. Reed, 282 Kan. 272, 

Syl. ¶ 3, 144 P.3d 677 (2006). Merely reporting an attorney to disciplinary authorities for 

an apparent violation of attorney-ethics rules normally does not constitute personal bias; 

judges have a duty to report such issues in appropriate cases. See United States v. 

Mendoza, 468 F.3d 1256, 1261-63 (10th Cir. 2006). 

In this case, however, we conclude that the impartiality of these judges might 

reasonably be questioned. Although the Court of Tax Appeals immediately signaled that 

it might lack the authority to consider the taxpayers' appeals at all, it launched an

inquisition into matters well beyond the limited question of whether the real parties in 

interest were before it. More significantly, the judges unanimously concluded that the 

sworn testimony of Jerry Chatam and the representations of attorney Terrill lacked 

credibility. The taxpayers would reasonably wonder whether these judges could give 

them a fair hearing while Chatam and Terrill continued to provide the taxpayers 

representation on remand. 

In most cases, a judge's findings in the course of a lawsuit—even credibility 

findings—are not cause for disqualification. See Foy, 227 Kan. 405, Syl. ¶ 3. Here, 

however, the findings were that the chosen attorney and tax representative for these 

taxpayers lacked credibility—and the findings came in an inquiry initiated solely by the 

court itself that went far beyond its statutory authority. Under these facts, a reasonable 

person would question the ability of these judges to continue impartially in this case on 

remand. We therefore conclude that their disqualification should be ordered under K.S.A. 

2013 Supp. 77-621(c)(8) on the ground that their failure to recuse under these 

circumstances was unreasonable.
16

A reasonable person, considering this situation, would look at whether the parties 

to this appeal—the taxpayers—could have confidence that the judges were, in fact, 

impartial. It is important that those appearing in our courts have confidence that they will 

receive a fair hearing. See In re Marriage of Underwood, No. 104,315, 2011 WL 

6942931, at *5 (Kan. App. 2011) (unpublished opinion); State v. Bennett, No. 96,591, 

2008 WL 588138, at *2 (Kan. App. 2008) (unpublished opinion); Tyler, Why People 

Obey the Law (2d ed. 2006). We do not know that the judges in this case could not set 

aside their previous findings to provide a fair hearing on remand. We simply conclude 

that a reasonable person would justifiably lack confidence in their impartiality, and that's 

sufficient to make their failure to recuse unreasonable.

We should note that the judges refused to disqualify themselves in part based on 

the rule of necessity. Under that rule, a judge who otherwise would be disqualified may 

be required to continue because otherwise no judge would be available. See Geyh, Alfini, 

Lubet & Shaman, Judicial Conduct & Ethics § 4.04 (5th ed. 2013). The judges assumed 

for the purpose of their ruling that there was no authority to provide replacement judges 

in the event of their disqualification.

In the present posture of this appeal, however, we need not determine whether the 

rule of necessity precluded the disqualification of these judges. Since the court's original 

ruling, one of its members has been replaced, and the court also has a chief hearing 

officer who is authorized by statute to act as a pro tem judge. See K.S.A. 2011 Supp. 74-

2433; L. 2014, ch. 141, sec. 2. While the court must act with the vote of at least two 

members, it has one regular member and one pro tem member available who did not 

participate in the original proceedings. Thus, it now has the ability to act on these appeals

without the participation of any of the judges whose disqualification was sought by the 

taxpayers.
17

Because of these changes while this appeal has been pending, we have not 

thoroughly reviewed all potential authorities under which the Governor might appoint pro 

tem judges because, given the current makeup of the court, it is not necessary for us to do 

so. We do not foreclose the possibility that additional pro tem judges may be appointed to 

the Court of Tax Appeals. See K.S.A. 2011 Supp. 77-514(e), (f); K.S.A. 2011 Supp. 74-

2433; L. 2014, ch. 141, sec. 2; see also Johnson v. Darr, 114 Tex. 516, 517, 272 S.W. 

1098 (1925) (noting that case was decided entirely by pro tem judges after all regularly 

appointed judges were disqualified). 

The County also raised three other objections to the taxpayers' presentation on 

appeal of this disqualification issue. 

First, it argued that the taxpayers did not follow the provisions of K.S.A. 20-311d, 

a statute that provides the method for seeking disqualification of a district judge. We find 

nothing in that statute that would make it applicable to the disqualification of a judge in 

an administrative hearing. A provision of the Kansas Administrative Procedure Act, 

K.S.A. 2011 Supp. 77-514(c), applies to such cases, not K.S.A. 20-311d. See K.S.A. 

2011 Supp. 74-2426(a); Westboro Baptist Church, Inc. v. Patton, 32 Kan. App. 2d 941, 

946, 93 P.3d 718, rev. denied 278 Kan. 852 (2004). 

Second, it argued that the taxpayers failed to file a motion to reconsider the judges' 

denial of the recusal motion. The County cites K.S.A. 2011 Supp. 74-2426(b), which 

provides that "[n]o final order of the [Court of Tax Appeals] shall be subject to review 

. . . unless the aggrieved party first files a petition for reconsideration of that order . . . ." 

In this case, the motion to disqualify the judges was filed while the taxpayers' motion to

reconsider the original order of the Court of Tax Appeals dismissing the appeals and 

making other findings was pending.
18

The problem with the County's argument is that the order denying recusal was not 

a "final order" under K.S.A. 2011 Supp. 74-2426(b). "Final order" is synonymous with 

"final agency action." Norris v. Kansas Employment Security Bd. of Review, 50 Kan. 

App. 2d 69, 76-77, 321 P.3d 28 (2014). And the final agency action is its determination 

of the substantive rights of the parties before it, such as the ruling on the taxpayers' 

valuation appeals, not its procedural rulings along the way. The Kansas Judicial Review 

Act separately defines "final agency action" and "nonfinal agency action," including as 

nonfinal those "part[s] of an agency . . . process that the agency intends . . . to be . . . 

procedural . . . ." K.S.A. 77-607(b)(2). The final agency action in this case initially was 

its original order denying relief to each of the taxpayers. The taxpayers sought 

reconsideration of that final agency action as required by K.S.A. 2011 Supp. 74-2426(b). 

No further action was required to preserve the judicial-disqualification issue, a purely 

procedural matter, for judicial review. 

Third, it argued that a court has no authority to remove a judge of the Court of Tax 

Appeals. The County based its argument on the separation-of-powers doctrine, arguing 

that a court cannot remove an administrative-law judge in the Executive Branch. But the 

County confuses what is actually at issue in this case. We are not called upon to remove 

any judges from the Court of Tax Appeals; we are only called upon to determine whether 

any of these judges should be disqualified from further participation in this appeal. The 

legislature has clearly indicated that Court of Tax Appeals judges may be disqualified 

from a particular proceeding for bias, prejudice, or personal interest. See K.S.A. 2011 

Supp. 77-514(b), (c); K.S.A. 2011 Supp. 74-2426(a). 

We reverse the decision of the Court of Tax Appeals in each of the appeals, vacate 

its unauthorized findings and rulings on the non-tax issues, and remand the cases with 

directions for further proceedings consistent with this opinion.