Attorney General Opinion No. 1989-073 PDF Download

Author: Robert T. Stephan
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Moneys in the county noxious weed fund may be used only to treat and eradicate weeds declared noxious by Kansas statute. A county may by its home rule powers appropriate county general funds for the control of weeds not listed as noxious. Cited herein: K.S.A. 2-1314a, repealed L. 1988, ch. 3, section 4; K.S.A. 19-101; 19-101a; 19-101c.

Author: Robert T. Stephan
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Languages : en
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The decision to approve the secretary of agriculture's leave of absence lies within the discretion of the board of agriculture. In our opinion service as a White House Fellow presents circumstances that overcome the presumption that employment outside the state is insufficient reason for approval of a leave of absence. Additionally, the board has the implied power to appoint an acting secretary to serve during the secretary's leave of absence. Cited herein: K.S.A. 1989 Supp. 74-503; K.S.A. 75-2949; 75-3149; 75-4315b.

Author: Robert T. Stephan
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Languages : en
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1988 House Bill No. 2704, places restraints on the "property rights" of individuals in order to promote and protect the well established public welfare interest of insuring that human remains are treated properly. In our opinion it clearly represents a valid exercise of the state's inherent police power. Therefore, any private individual claiming ownership of human skeletal remains would not be entitled to compensation simply because the state regulation requires relinquishment of the remains. However, if a claimant convinced the court that 1988 House Bill No. 2704 operated as an eminent domain taking of an identifiable property interest, rather than a valid exercise of police power, the court could require compensation for any legally held property interest taken by the regulation. Valuation of such a property interest would require consideration of factors set forth in K.S.A. 26-513(d) and evidence of (1) the fair market value and condition of the portion of property at the time of the taking, and (2) the loss of that value to the legal owner. Cited herein: K.S.A. 7-103; 12-707; 12-1401; 13-14c01; 14-1007; 15-1001; 15-1014; 17-1302; 19-1015; 19-2901; 19-3106; 21-3512; 21-4112; 21-4115; 21-4214; 22-3902; 26-513; 41-101; 58-2501; 65-901; 65-1701; 65-4127; 73-301; and 80-916.

Author: Robert T. Stephan
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Languages : en
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K.S.A. 1986 Supp. 21-3914(a) and K.S.A. 45-220(c) provide that n̲̲o̲ l̲i̲s̲t̲ of names and addresses obtained from public records can be used for solicitation purposes. This limitation on the use of such information applies not only to individuals, but also to the name and addresses of businesses which are made public record. Cited herein: K.S.A. 1986 Supp. 21-3914; K.S.A. 45-215; 45-220.

Author: Robert T. Stephan
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Languages : en
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It is our opinion that unless a specific law alters common law, the presence of five of a nine member board constitutes a quorum of that body and a majority vote of those five members (three) is sufficient to bind the body. If one of the members abstains from the vote, he is deemed to have voted with the majority unless he has an interest or bias in the matter and is therefore disqualified. Where the required majority exists without the vote or presence of the disqualified member, his vote or presence will not invalidate the result. Members disqualified from voting may not be counted when determining whether a quorum is present. Cited herein: K.S.A. 75-4317a.

Author: Robert T. Stephan
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Languages : en
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Simply stated, the public purpose doctrine permits the spending of public funds only for public purposes. A benefit to specific individuals does not necessarily deprive the expenditure of its public character if the benefit is incidental to the primary purpose of promoting the public welfare. In our opinion, the cost-share program that provides public monies to assist landowners in plugging their abandoned wells serves the public welfare. The program was implemented in response to the federal water pollution control act (commonly referred to as the clean water act) to expeditiously restore and maintain the biological integrity of the nation's waters. Cited herein: K.S.A. 1991 Supp. 65-101; 65-164; K.S.A. 65-171a; 75-5657; 82a-1213; 82a-1214; 33 U.S.C. sections 1251, 1329, 1362.

Author: Robert T. Stephan
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Languages : en
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A municipal court judge is not ethically barred from serving as criminal defense counsel in district court except in those cases on appeal from his or her municipal court. Cited herein: K.S.A. 1980 Supp. 7-125, 20-176.

Author: Robert T. Stephan
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Languages : en
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T̲h̲e̲ ̲W̲y̲a̲n̲d̲o̲t̲t̲e̲ ̲E̲c̲h̲o̲, in its current form, qualifies as a newspaper in which legal notices may be published pursuant to K.S.A. 1988 Supp. 64-101. Cited herein: K.S.A. 1988 Supp. 64-101.

Author: Robert T. Stephan
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Languages : en
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Property seized from a pawnbroker and held by law enforcement officials for use as evidence in a criminal proceeding is regarded as being in c̲u̲s̲t̲o̲d̲i̲a̲ l̲e̲g̲i̲s̲ and subject to the court's order as to the disposition thereof in the same proceeding. If the property is identified as being stolen, it is the duty of the court and the state to see that the property is restored to its rightful owner at the earliest opportunity. However, the due process rights of the pawnbroker must be respected, W̲o̲l̲f̲e̲n̲b̲a̲r̲g̲e̲r̲ ̲v̲.̲ ̲W̲i̲l̲l̲i̲a̲m̲s̲, 774 F.2d 358 (10th Cir. 1985), and the Court should provide the pawnbroker with notice and opportunity to be heard before releasing property to the apparent owner. Cited herein: K.S.A. 1988 Supp. 22-2512.

Author: Curt Thomas Schneider
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House Concurrent Resolution No. 5023, if adopted, would not authorize the submission of a proposition to rescind 1972 House Concurrent Resolution No. 1155 to the voters at the time of the 1978 general election or at any other election. If adopted, the resolution would have no legal effect whatever, and would not authorize the expenditure of state funds for such an election, nor would it authorize the calling and holding of any such election by the Secretary of State or any other official. If, for any reason, the resolution were passed and the proposition submitted to the voters, approval thereof would have no effect on the 1972 ratification of the Equal Rights Amendment by the Kansas Legislature, it would not be binding upon the United States Congress, and it would not be binding upon the 1979 legislature or any subsequent session thereof.