Kansas Attorney General Opinion 2021-003

October 4, 2021
ATTORNEY GENERAL OPINION NO. 2021- 3
The Honorable David Haley
State Senator, 4th District
936 Cleveland Avenue
Kansas City, KS 66101
Re: 	Taxation—Judicial Foreclosure and Sale of Real Estate by County—Order
of Sale; Publication Notice; Auctioneer May Be Employed; Procedure for
Bidding in Behalf of County; Deed, Execution and Recordation
Synopsis: 	K.S.A. 79-2804 requires foreclosure sales be held by public auction. 	The
requirement for public auction is satisfied by use of an online auction site
with members of the public being allowed an in-person place in the county
to observe or bid. Kansas law does not specifically require a public auction
be held solely in person. Cited herein: K.S.A. 58-1015, 75-4317a, 79-2302,
79-2303, 79-2306, 79-2401a, 79-2801, 79-2803, 79-2804.
* 	* 	*
Dear Senator Haley:
As State Senator for the 4th District, you ask for our opinion on whether an online auction
conducted only electronically over the internet constitutes a public auction and satisfies
statutory requirements for a tax sale of real estate for delinquent property taxes pursuant
to K.S.A. 79-2801 et seq. and any other applicable provisions of law.
Specifically, you question whether a county's use of an online auction service to conduct
an auction of real estate for delinquent property taxes satisfies the statutory requirements
of K.S.A. 79-2804.

The Honorable David Haley
Page 2
You explained that Wyandotte County (hereinafter “County”) conducts its delinquent
property tax sales online through an auction site. 1 	The County advertises that the sale
will take place via online auction. 	In addition, the County maintains computer terminals
with in-person staff assistance at Memorial Hall during the day of the auction. The County
provides a method for bidders to make payment in person at Memorial Hall or to make
payment online.
As discussed below, we conclude that K.S.A. 79-2804 requires the tax sale of delinquent
property to be held through public auction, but does not specify that the public auction be
held entirely in person.
In July of each year, each county treasurer prepares a list of real estate for which taxes
are delinquent. 2 After publication of this list and accompanying notice pursuant to K.S.A.
79-2303 et seq., any property that remains subject to the automatic tax lien arising when
taxes become delinquent may be "bid off" or sold for the amount of the unpaid taxes and
legal charges due on the property. 3 We note that the county treasurer is the only entity
allowed to bid in this sale. 4 The real property sold to the county under K.S.A. 79-2306 is
then held for two years from the date of the sale, unless the property is redeemed
pursuant to K.S.A. 79-2401a, until it can be sold in foreclosure pursuant to K.S.A. 79-
2801 et seq.
K.S.A. 79-2801 et seq. establish and authorize the procedure by which real property may
be judicially foreclosed upon and sold at public auction. Once the foreclosure petition
authorized by K.S.A. 79-2801 has been filed, the property owner has one final opportunity
to redeem the property before the day of the sale. 5 K.S.A. 79-2804 governs the procedure
through which delinquent property is placed for public auction and sold after entry of
judgment in a foreclosure action. 	K.S.A. 79-2804 requires the following:
[T]he sheriff of the county … shall … cause notice of sale to be published
once each week for three consecutive weeks in some newspaper of general
circulation in the county. … The notice shall state that the sale will be held
at the front door of the courthouse in the county or shall identify some other
location in the county where the sale will be held, as selected by the chief
judge of the judicial district in which the county is located.
On the day fixed for the sale by such notice, the sheriff shall offer each such
tract, lot or piece of real estate for sale, separately, and the same shall be
1 Wyandotte County conducts these auctions through CivicSource. 	CivicSource is an online auction
company that requires registration in order to bid or view auctions. There is no cost to register for this
service. https://www.civicsource.com/ (last accessed 9/28/2021).
2 K.S.A. 79-2302.
3 K.S.A. 79-2306.
4 See Attorney General Opinion 2007-01 (discussing the property tax cycle and process for foreclosure of
delinquent real property).
5 K.S.A. 79-2803 (providing the process by which the property may be redeemed before the day of the sale
by the owner or holder of the record title, his or her heirs, devisees, executors, administrators, assigns, or
any mortgagee or his or her assigns).

The Honorable David Haley
Page 3
sold at public auction for the highest and best bid obtainable therefor. The
sheriff may employ an auctioneer for such reasonable compensation as
may be determined by the court, to be allowed as a part of the costs and
expenses of the proceedings and sale.6
In the scenario you describe, it appears that notice was properly given. The next
requirement of the statute is that the sale be held "at the front door of the courthouse in
the county or … some other location in the county …, as selected by the chief judge of
the judicial district in which the county is located." 7 We interpret this provision as requiring
that the sale be conducted in a way that allows people to attend in person at a defined
location in the county and make bids. The statute contains no prohibition on online
participation. We opine that allowing people to participate electronically from remote
locations is permissible, so long as members of the public are permitted to attend and
participate in person at a physical location in the county. We also note that the Wyandotte
County District Court approved the details of the sales.
Whether an online internet auction complies with the public auction provisions of K.S.A.
79-2804 depends on whether the word “public” requires in-person attendance to conduct
or participate in the statutorily-required auction. The most fundamental rule of statutory
construction is that the intent of the Legislature governs if it can be ascertained. 8 In order
to determine the legislative intent, the courts first look to the plain language in the statute,
giving common words their ordinary meanings. If the language is clear and unambiguous,
the courts do not engage in speculation as to the legislative intent. 9
K.S.A. 79-2801 et seq. do not provide a definition for public auction, public, or auction.
The only Kansas statute that defines “public auction” is found in the new goods public
auction law (K.S.A. 58-1014 et seq.) and applies only to public auction sales of new
goods, wares and merchandise by itinerant merchants. K.S.A. 58-1015 states “(e) "public
auction" means the offering for sale or selling of new goods, wares or merchandise to the
highest bidder or offering for sale or selling of new goods, wares or merchandise at a high
price and then offering the same at successive lower prices until a buyer is secured.” The
Kansas Supreme Court has stated, “[t]he public auction sale is as old as the law of sales
and is generally understood to be a public sale of property to the highest bidder. An
essential element of an auction sale is competitive bidding and any sale without
competitive bidding which is based on a fixed or negotiated price is not an auction sale.” 10
An auction that is advertised to the public and conducted online meets these definitions.
The term “public” is not defined in the statute, so we give that word its ordinary meaning,
in accordance with the fundamental rules of statutory construction discussed above.
“Public” 	means 	“1. Of, 	relating 	to, 	or 	involving 	an 	entire 	community, 	state, 	or
6 Emphasis added.
7 K.S.A. 79-2804.
8 Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918 (2013).
9 Id.
10 Feaster Trucking Serv., Inc. v. Parks-Davis Auctioneers, Inc., 211 Kan. 78, 82 (1973).

The Honorable David Haley
Page 4
country. 2. Open or available for all to use, share, or enjoy.”11 Similarly, the term “auction”
is not defined in the statute. “Auction” means “[a] public sale of property to the highest
bidder; a sale by consecutive bidding, intended to reach the highest price of the article
through competition for it.” 12 The statute is silent as to the method of auction to be used
– it does not designate that bids be made orally or with auction paddles, for instance, and
it does not forbid online bid-casting. 13 We will not read into the statute something not
readily found in it.14 Here, K.S.A. 79-2804 requires sale to the highest and best obtainable
bidder by public auction. 	Because we find that the language of K.S.A. 79-2804 is plain
and unambiguous, there is no need to resort to statutory construction or review legislative
history to ascertain the Legislature’s intent. 15
Your 	request 	also 	references 	the 	provisions 	of 	the 	Kansas 	Open 	Meetings 	Act
(hereinafter “KOMA”) (K.S.A. 75-4317 et seq.). We note that the provisions of K.S.A. 79-
2804 control the process through which a public auction is conducted for the sale of
delinquent real property, not the KOMA. 	However, we note that the KOMA specifically
provides for the use of a telephone or other medium for interactive communication as
means to conduct meetings covered by the act.16
Finally, we note that the questioned auctions that are the subject of your request are not
conducted solely online. The County continues to provide a physical location that allows
in-person attendance at these public auctions at Memorial Hall and provides access to
computer terminals to view and/or participate in these auctions. In addition, the County
provides staff to assist members of the public with the use of these computer terminals
during the time of the auctions. K.S.A. 79-2804 also allows the County Sheriff to employ
the use of an auctioneer to conduct these auctions. 	CivicSource acts as auctioneer of
these sales. We find no requirement in the statute that the auctioneer need be physically
present at the location of the public auction.
In summary, we conclude that K.S.A. 79-2804 does not require that judicial foreclosure
auctions be held solely in person and that an online auction site functioning as an
11 Public. Black's Law Dictionary (11th ed. 2019).
12 Auction. Black's Law Dictionary (11th ed. 2019).
13 Several states conduct public auctions for the disposition of judicial foreclosures. 	See Laura B. Bartell,
Tax Foreclosures As Fraudulent Transfers - Are Auctions Really Necessary?, 93 Am. Bankr. L.J. 681, 696
(2019) (stating that approximately half of the states conduct some form of auction for delinquent real
property). Some states specifically list online auctions as a manner of conducting a public auction. See
Colo. Rev. Stat. Ann. § 39-11-108 (“A public auction conducted by means of the internet or other electronic
medium to sell lands and town lots under this article shall allow members of the public to submit bids by
computer and permit the treasurer to accept bids for as long as the treasurer deems necessary.”); Ohio
Rev. Code Ann. § 5721.39 	(“The officer to whom the order of sale is directed may conduct the public
auction of the parcel at a physical location in the county in which the parcel is located or online.”). We note
that these states discuss online or in-person auctions as types of public auction. 	Some states specify the
requirement for in-person attendance. See Ark. Code Ann. § 26-37-202. Most states only refer to a public
auction without providing more specificity for location. See Cal. Rev. & Tax Code § 3693.
14 Northern Natural Gas Co., 296 Kan. at 918.
15 State v. Pulliam, 308 Kan. 1354, 1364 (2018).
16 K.S.A. 75-4317a; see also K.A.R. 16-20-1 discussing the use of mediums of interactive communication
to conduct meetings during a period of emergency declaration.

The Honorable David Haley
Page 5
auctioneer on behalf of the Sheriff satisfies the requirement to hold a public auction found
in the statute. Moreover, we also conclude the County’s provision of a physical location
in the county, computer terminals, in-person payment option, and staff assistance
provides the required physical location component to the questioned auctions.
Sincerely,
Derek Schmidt
Kansas Attorney General
Philip R. Michael
Assistant Attorney General
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