Kansas Attorney General Opinion 2014-015

September 30, 2014
ATTORNEY GENERAL OPINION NO. 2014- 15
Steven W. Hirsch
Decatur County Attorney
P.O. Box 296
Oberlin, KS 67749
Re: 	Taxation‒Judicial Foreclosure and Sale of Real Estate by County‒Order
of Sale
Synopsis: 	A clerk of a district court is authorized to sign orders of sale issued
pursuant to K.S.A. 79-2804. Cited herein: K.S.A. 79-2803 and 79-2804.
* 	* 	*
Dear Mr. Hirsch:
As County Attorney for Decatur County, you ask our opinion on the following provision
of K.S.A. 79-2804: “[a]fter the rendition of such judgment there shall be issued by the
clerk of the district court to the sheriff of the county an execution or order of sale . . . .”
You ask whether this language authorizes the clerk of the district court to sign the order
of sale, or whether such order must be signed by the district judge.
K.S.A. 79-2803 assigns the district court the duty to decide actions brought by a county
to foreclose on real estate for delinquent taxes, “and to render judgment therefor.” It is
this judgment to which the prefatory language in K.S.A. 79-2804 refers. Once the district
court renders a judgment in such a foreclosure action, the clerk of the district court is
directed by statute to issue an execution or order of sale for the real estate described in
the judgment.

Steven W. Hirsch
Page 2
Whether the district court clerk is authorized to sign and issue the order of sale is
dependent on whether this act is a judicial function or a ministerial function. 1
An act in the performance of a ministerial duty is imperative; it is done in
obedience to some legal mandate; it involves no official discretion and of
no judgment as to the propriety of the act. In these respects it is wholly
unlike an act in the performance of judicial duties.2
By 	contrast, 	the 	judicial 	function 	involves 	“the 	exercise 	of 	judgment, 	discretion,
discernment, 	or 	discrimination.” 3 Based 	upon 	these 	distinctions, 	K.S.A. 	79-2804
authorizes the clerk of the district court to sign the order of sale because “issuing” the
order is a ministerial function, not a judicial function. It is clear from the language of
K.S.A. 79-2804 that the clerk of the district court has no discretion or judgment as to
whether it is proper to issue the order of sale.
In conclusion, the issuance of an order of sale pursuant to K.S.A. 79-2804 is a
ministerial act that is executed by the clerk, a ministerial officer.
Sincerely,
Derek Schmidt
Attorney General
Sarah Fertig
Assistant Attorney General
DS:AA:SF:sb
1 “A clerk of a court is a ministerial officer, and without statutory authority cannot exercise judicial
functions.” Cook v. City of Topeka, 232 Kan. 334, 338 (1982).
2 232 Kan. at 337 (quoting Hamma v. People, 42 Colo. 401, 407 (1908)).
3 Ferguson v. Smith & Dunham,10 Kan. 396, 404-405 (1872).