Attorney General Opinion No. 1982-129 PDF Download

Author: Robert T. Stephan
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Article 9 of the Uniform Commercial Code (UCC), which governs secured transactions, is applicable to a security interest in oil or gas a̲f̲t̲e̲r̲ such minerals are extracted from the earth. The UCC is not applicable, however, to mortgages of oil and gas leasehold interests, and recordation of such mortgages is governed by the real estate recordation statutes in Chapter 58 of the Kansas Statutes Annotated and the mortgage registration fee statutes, K.S.A. 79-3101 e̲t̲ s̲e̲q̲. Cited herein: K.S:A; 1981 Supp. 79-3102, 84-9-402.

Author: Robert T. Stephan
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A contract which determines the custody of a child is void as against public policy. Cited herein: K.S.A. 23-128, 23-129, 23-130.

Author: Robert T. Stephan
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In a proceeding to determine grandparent visitation rights pursuant to K.S.A. 38-129, the appointment of a guardian a̲d̲ l̲i̲t̲e̲m̲ for a child or an attorney for an indigent parent, is not statutorily required. Furthermore, visitation does not generally involve the type of interference with parental rights which necessitates such due process safeguards as the appointment of counsel or a guardian a̲d̲ l̲i̲t̲e̲m̲. However, a court may decide that, in certain circumstances, due process considerations justify appointment of counsel or a guardian a̲d̲ l̲i̲t̲e̲m̲. In the event of such appointments, the court is authorized to assess these expenses against either party pursuant to K.S.A. 38-131. Cited herein: K.S.A. 38-129, 38-131, 38-821.

Author: Robert T. Stephan
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As amended by L. 1982, ch. 144, section 5, K.S.A. 1981 Supp. 8-1567 provides that a person convicted of a violation of the offense of operating a motor vehicle while under the influence of alcohol may be required to perform public or community service work as an alternative to incarceration or payment of a fine. In assigning the work to be performed, a judge or court services division would be exercising judicial and discretionary functions, respectively, and would be exempt from liability under the Tort Claims Act, K.S.A. 1981 Supp. 75-6101 e̲t̲ s̲e̲q̲. However, as noted by Attorney General Opinion Nos. 81-98 and 82-157, the recipient organization (including local governments and non-profit corporations) may be liable for injuries and damages inflicted or suffered by persons acting within the scope of their designated community service duties. Cited herein: K.S.A. 1981 Supp. 8-1567 (as amended by L. 1982, ch. 144, section 5), K.S.A. 21-4610, K.S.A. 1981 Supp. 75-6102, 75-6104.

Author: Robert T. Stephan
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During the 1982 session of the Legislature, both Senate Bill Nos. 559 and 595 were enacted into law. As each of the two measures contains a section amending K.S.A. 16a-2-401, they should, if possible, be considered together in order to give effect to both. In that they alter different subsections of the statute, the two measures are not in conflict. Even though the changes made by S.B. No. 595 are not reflected in S.B. No. 559, K.S.A. 16a-2-401 may be read to include the changes made by both acts. Cited herein: K.S.A. 16a-2-201, 16a-2-401, 1982 Senate Bill No. 559, 1982 Senate Bill No. 595.

Author: Robert T. Stephan
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As amended by L. 1982, ch. 144, K.S.A. 1981 Supp. 8-1567 contains new provisions for the sentencing of persons who are convicted of operating a vehicle while under the influence of alcohol. Additionally, the act amends K.S.A. 1981 Supp. 8-1001 to admit into evidence the defendant's refusal to take a chemical test for the presence of alcohol. While the act does not specifically provide that these changes will apply only to offenses committed after its effective date of July 1, 1982, such a result is necessary in view of the substantive, as opposed to merely procedural, nature of these two amendments. Accordingly, the above-referenced amendments are applicable only to offenses committed after the effective date of the act. Cited herein: K.S.A. 1981 Supp. 8-1001, 8-1567, both as amended by L. 1982, ch. 144, K.S.A. 21-3102, 22-4618.

Author: Robert T. Stephan
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Neither K.S.A. 12-1222 nor the common law doctrine of incompatibility of offices precludes a person from simultaneously being the county register of deeds and a member of a city's library board. Cited herein: K.S.A. 12-1218 and 12-1222.

Author: Robert T. Stephan
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A register of deeds is required to file of record a written instrument whereby real estate may be affected. Such filing can properly be refused only if the instrument contains apparent errors, or is not proved or acknowledged, and certified in the manner prescribed by law, or the register of deeds has been directed by a court not to file the instrument. Of course, a register of deeds also may refuse to file instruments that clearly do not affect real estate, or where the law requires some act, such as payment of the mortgage registration fee, before the instrument may be received and filed of record. Cited herein: K.S.A. 58-2221.

Author: Robert T. Stephan
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The Kansas Governmental Reorganization Act, K.S.A. 12-3901 e̲t̲ s̲e̲q̲., authorizes political subdivisions of the state, including counties, to consolidate offices and agencies of the subdivision in the interest of efficiency and to avoid duplication. Consolidation means the replacement of two or more agencies or offices with a single new office. The proposed Johnson County executive reorganization apparently does not involve consolidation and thus is not authorized by K.S.A. 12-3901 e̲t̲ s̲e̲q̲. The county home rule statute, K.S.A. 1982 Supp. 19-101a, as amended, authorize counties to transact all county business and to enact local legislation except that counties are subject to acts of the legislature which apply uniformly to all counties. If there are no statutes uniformly applicable, counties may enact local legislation not contrary to state statutes by ordinary resolution. If proposed local legislation conflicts with or is contrary to nonuniform state legislation the county must act through charter resolution. The Johnson County Parks and Recreation District is a body corporate and politic, empowered by state statute to exercise the powers of a public corporation. The proposed Johnson County executive reorganization would dissolve the independent taxing district. The statutes governing the district do not provide for dissolution of the district by the county and the county home rule statutes do not grant the county the power to dissolve the district, duly created under K.S.A. 19-2859 - 19-2881b. The state statutes concerning the Mental Health and Mental Retardation Boards and the Library Board are uniform in application to counties and cannot be modified by the county through the exercise of home rule powers. Cited herein: K.S.A. 12-1219, 12-1222, 12-1225, 12-3901 e̲t̲ s̲e̲q̲., K.S.A. 1982 Supp. 19-101a, as amended by L. 1983, chs. 91 and 92, K.S.A. 19-101b, 19-101c, 19-2859, 19-2861, 19-2862, 19-2863, 19-2867, 19-2868, as amended by L. 1983, ch. 101, K.S.A. 19-4001, 19-4002(a), 19-4003, 19-4009.

Author: Robert T. Stephan
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Pursuant to K.S.A. 28-137 (as amended by L. 1982, ch. 166, section 4), the party requesting publication of a legal notice in any court action or proceeding is responsible for payment of the fees and charges of the publisher, and a publisher may properly refuse to publish any such notice or to file proof of publication of the notice, unless such payment is made. However, there is nothing to preclude a publisher from accommodating the party requesting such publication and awaiting payment of the publication fees and charges until such time as costs are taxed in the action or proceeding. Cited herein: K.S.A. 28-137 (as amended by L. 1982, ch. 166, section 4).