Attorney General Opinion No. 1980-158 PDF Download

Author: Robert T. Stephan
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The common law doctrine of incompatibility of offices does not preclude a county commissioner from concurrently being employed as a filter plant operator by the city water department of a city located within the county where the commissioner holds office. Cited herein: K.S.A. 1979 Supp. 19-205.

Author: Robert T. Stephan
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The "most favored lender" doctrine established under 12 U.S.C. section 85 permits national banks to charge the maximum rate of interest permitted under state law to any competing lender. Section 521 of P.L. 96-221, the Depository Institutions Deregulatory and Monetary Control Act of 1980, accords most favored lender status to state-chartered, federally-insured banks. Thus, by virtue of the most favored lender doctrine and the express provisions of said section 521 (12 U.S.C. section 1831d), state banks in Kansas may charge interest at a rate which is the greatest of either: (1) one percent over the discount rate on ninety-day commercial paper in effect at the federal reserve bank in the federal reserve district where the bank is located; (2) the rate specifically prescribed for state banks by the laws of Kansas; or (3) the highest rate available to lenders generally pursuant to the laws of Kansas. Additionally, interest rates on agricultural and business loans of $1,000 or more have been preempted by federal legislation, and such rates are now prescribed by section 324 of P.L. 96-399. Cited herein: K.S.A. 1980 Supp. 16a-2-401, as amended by section 1 of 1981 House Bill No. 2578, L. 1980, ch. 76, section 1, 12 U.S.C. sections 85, 86a, 1831d, P.L. 96-221, sections 501, 511, 512, 521, 522, 523, 525, P.L. 96-399, section 324, 12 C.F.R. section 7.7310.

Author: Robert T. Stephan
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The conclusion reached in Attorney General Opinion No. 81-158, that a state's interest rate limitations on business and agricultural loans of $1,000 or more have been preempted by federal legislation, is affirmed. However, because such preemption is operative only if the federally-prescribed interest rate limitation exceeds a state's limitation, such preemptive interest rate is not applicable in Kansas, since Kansas statutes no longer impose any interest rate limitations on business and agricultural loans. Cited herein: K.S.A. 1980 Supp. 16-207 (as amended by L. 1981, ch. 88, section 1), 16a-1-301 (as amended by L. 1981, ch. 93, section 5), 12 U.S.C.A. section 86a, P.L. 96-221, section 521, P.L. 96-399, section 324.

Author: Robert T. Stephan
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Languages : en
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In the absence of statutory or case law prohibition, marriages in which one party is represented by a proxy at the time of the ceremony are legal in Kansas. In addition to complying with general statutory requirements established by K.S.A. 23-101 e̲t̲ s̲e̲q̲., the party who is to be represented by a proxy at the ceremony must confer a power of attorney on the latter to act on his or her behalf. Cited herein: K.S.A. 23-104a, K.S.A. 1979 Supp. 23-106, 23-301, L. 1980, ch. 106, section 1.

Author: Robert T. Stephan
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A qualified right to protect property emanates from section 18 of the Bill of Rights of the Kansas Constitution. Such a right is an affirmative defense which may be raised by a defendant charged with the unlawful killing of a deer. However, in order to justify the killing of a deer out of season or contrary to law, there must be substantial injury to property, and the landowner should present evidence that he has exhausted other remedies provided by law. Additionally, the burden will rest upon the property owner to demonstrate that the killing was, in all respects, reasonable. The qualified right to protect property from damage by game animals does not authorize a property owner to take possession of a deer killed in defense of property. Cited herein: K.S.A. 1979 Supp. 32-104, 32-104b, K.S.A. 32-107, 32-110a, K.S.A. 1979 Supp. 32-156, 32-158, 32-164, 32-178, 32-179, K.S.A. 32-212, K.S.A. 76-459; Kan. Const., Bill of Rights section 18; K.A.R. 23-2-5 and 23-2-7.

Author: Robert T. Stephan
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Public defenders are employees within the meaning of K.S.A. 1979 Supp. 75-6102, in the performance of professional services to their clients and are therefore, within the provisions of the Kansas Tort Claims Act and entitled to the indemnities, defenses and immunities contained therein. Cited herein: K.S.A. 22-4512, K.S.A. 1979 Supp. 22-4517, 22-4517a, 40-3401, 75-6101, 75-6102, 75-6103, 75-6104, 75-6105, 75-6108, 75-6109, 75-6111, 75-6115, United States Const., Sixth Amend., 18 U.S.C.A. 3006A (Supp. 1979).

Author: Robert T. Stephan
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Matters involving specific persons under K.S.A. 75-4319(b)(1) and (5) may be discussed in executive session so long as no binding action is taken. However, investigations and research projects affecting groups of persons generally but not specifically, are not the proper subjects of a closed meeting, unless discussion concerns a subject matter otherwise specifically permitted to be considered in closed or executive session by 75-4319(b). Cited herein: K.S.A. 1979 Supp. 74-7401, 74-7402,74-7403, K.S.A. 75-4317, K.S.A. 1979 Supp. 75-4318, K.S.A. 75-4319.

Author: Robert T. Stephan
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Pursuant to L. 1980, ch. 72, section 3, "personal liability" is imposed upon boards of public utilities and their employees in certain circumstances. Such imposition of "personal liability" does not violate constitutional requirements of equal protection and due process, and is not invalid or unenforceable on the ground of vagueness. Employees of a board of public utilities and board members are not entitled to be indemnified or defended against the personal liability imposed by L. 1980, ch. 72, section 3. Cited herein: K.S.A. 13-1220, K.S.A. 1979 Supp. 13-1221, 13-1223, 13-1227, 13-1228, 13-1258, K.S.A. 13-1271, K.S.A. 1979 Supp. 75-6101; L. 1980, ch. 72, sections 3, 7, 8, 14, 19, and 22; Kan. Const., Bill of Rights sections 1, 2; and U.S. Const., Fourteenth Amendment.

Author: Robert T. Stephan
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Real estate brokers and salespersons who have been continuously and actively licensed in this state for a period of five or more years immediately prior to July 1, 1980, are not required to submit evidence of "continuing education" under the provisions of Section 13(g) of the Real Estate Brokers' and Salespersons' License Act [L. 1980, Ch. 164, section 13(g)]. A real estate broker or salesperson need not have been continuously and actively engaged in the real estate business for the subject period of time in order to qualify for the exemption created by the aforesaid section. Cited herein: L. 1980, Ch. 164, 12(b) and 13(g).

Author: Robert T. Stephan
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Through the imposition of fines for unlawful conduct, K.S.A. 1980 Supp. 8-1901(d) imposes criminal liability. In addition, subsection (a) of that statute does not appear to violate the United States Constitution's Equal Protection Clause, although it only imposes liability upon a limited class of persons. Moreover, that subsection appears to convey a sufficiently definite warning as to the conduct proscribed therein, so as to avoid being unconstitutionally vague and uncertain. Cited herein: K.S.A. 1980 Supp. 8-1901, 8-1909, K.S.A. 8-2116, 8-2204, 21-3105, K.S.A. 1980 Supp. 21-4503, U.S. Const., Amend. XIV.