Kansas Attorney General Opinion 2013-012

July 24, 2013
ATTORNEY GENERAL OPINION NO. 2013-12
Kim Borchers, Director of Appointments
Office of Governor Sam Brownback
Capitol Building
Room 259-S
Topeka, KS 66612
Re: 	State 	Boards, 	Commissions 	and 	Authorities‒Court 	of 	Tax
Appeals‒Membership; Qualifications; Chief Hearing Officer
Synopsis: 	The chief hearing officer of the Court of Tax Appeals is not subject to the
provision in K.S.A. 2012 Supp. 74-2433(a) prohibiting the appointment of
more than two judges from the same political party. Cited herein: K.S.A.
2012 Supp. 74-2433; 74-2434.
* 	* 	*
Dear Ms. Borchers:
On behalf of the Office of Governor Sam Brownback, you ask whether the chief hearing
officer of the Court of Tax Appeals (COTA) is subject to the provision in K.S.A. 2012
Supp. 74-2433(a) prohibiting the appointment of more than two COTA judges from the
same political party. That statute states in relevant part:
The court shall be composed of three tax law judges who shall be
appointed by the governor . . . . In addition, the governor shall also appoint
a chief hearing officer, subject to confirmation by the senate . . . who, in
addition to other duties prescribed by this act, shall serve as a judge pro
tempore of the court. . . . Not more than two judges of the court shall be of
the same political party. . . . Judges of the court, including the chief
hearing officer, shall be residents of the state. . . . Judges of the court,
including the chief hearing officer, shall hold office for terms of four years

Kim Borchers
Page 2
and until their successors are appointed and confirmed. . . . If a vacancy
occurs on the court, or in the position for chief hearing officer, the
governor shall appoint a successor to fill the vacancy for the unexpired
term. Nothing in this section shall be construed to prohibit the governor
from reappointing any judge of the court, including the chief hearing
officer, for additional four-year terms.1
At issue is whether the chief hearing officer, who among other duties serves as a judge
pro tempore of the COTA, is a “judge” subject to the partisan limitation. The plain
language of K.S.A. 2012 Supp. 74-2433(a) does not resolve the question because the
statute implies that the chief hearing officer is a judge (“[j]udges of the court, including
the chief hearing officer, shall be residents of the state. . . .”), but the statute also implies
that the chief hearing officer is separate and distinct from the COTA judges (“[i]f a
vacancy occurs on the court, or in the position for chief hearing officer, the governor
shall appoint a successor to fill the vacancy for the unexpired term. . . .”).2
When a statute is plain and unambiguous, a court will not speculate as to the legislative
intent behind it and will not read into the statute something not readily found in it. 3
However, if a statute’s language or text is unclear or ambiguous we may apply rules of
statutory construction or consider legislative history to construe the legislature’s intent. 4
The primary rule of statutory construction is that the legislature’s intent governs if it can
be ascertained. 5
In this case, we note that K.S.A. 2012 Supp. 74-2433(a) was last amended in 2008 by
Substitute for House Bill 2018 (HB 2018). 6 That bill abolished the Board of Tax Appeals
and created the COTA, and also created the position of chief hearing officer of the
COTA.
HB 2018 added the phrase “including the chief hearing officer” after many instances of
the word “judge” in both K.S.A. 74-2433 and 74-2434, thereby clarifying when a
statutory provision applies to the chief hearing officer as well as COTA judges. Notably,
however, the legislature did not add this phrase in the context of the partisan limitation.
This indicates that the legislature did not intend to subject the chief hearing officer to
this limitation.
In our opinion, because the legislature specified that particular uses of the word “judge”
include the chief hearing officer, the word “judge” standing alone does not. Therefore,
we opine that the chief hearing officer of the COTA is not subject to the provision in
K.S.A. 2012 Supp. 74-2433(a) prohibiting the appointment of more than two judges from
the same political party.
1 Emphasis added.
2 K.S.A. 2012 Supp. 74-2433(a) (emphasis added).
3See, e.g., State v. Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc., 291
Kan. 322 (2010).
4 Id.
5 See, e.g., Brennan v. Kansas Ins. Guar. Ass’n, 293 Kan. 446 (2011).
6 L. 2008, Ch. 109, § 2.

Kim Borchers
Page 3
Sincerely,
Derek Schmidt
Attorney General
Sarah Fertig
Assistant Attorney General
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