Attorney General Opinion No. 1984-048 PDF Download

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. 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. 5872211, 58-2221; Affirming Attorney General Opinion No. 82-164.

Author: Robert T. Stephan
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K.S.A. 25-1709 prohibits corporations carrying on the business of a bank from making contributions to political parties. As previously discussed in Attorney General Opinion No. 82-280, the "business of a bank" involves accepting deposits, allowing withdrawals, and paying interest on accounts. As a company which owns all or a portion of the stock of a bank is itself not engaged in the busines of banking, it is not subject to the prohibitions of the statute, and may make contributions to political campaigns or political parties, subject to applicable federal laws. Cited herein: K.S.A. 9-504, 9-505a, 9-701, K.S.A. 1983 Supp. 9-1101, as amended by L. 1984, ch. 48, section 4, K.S.A. 1983 Supp. 25-1709, K.S.A. 25-1710, 2 U.S.C.A. section 441b, 11 C.F.R. sections 114.1, 114.2.

Author: Robert T. Stephan
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K.S.A. 65-4321, as amended by L. 1984, Ch. 244, prohibits the renewal of a temporary certificate issued pursuant to its terms. The statute does not prohibit the issuance of temporary certificates to persons who have held temporary certificates in the past but who do not presently hold such certificates. The absence of such a prohibition and the overriding public interest in the adequacy of emergency medical services in a certain area of Doniphan County compels the conclusion that temporary certificates may be issued to certain ambulance attendants who have held such certificates in the past but who do not presently hold such a certificate. The issuance of temporary certificates must be in compliance with the requirements of K.S.A. 65-4321,: as amended, and no such certificate may issue to a person who is not enrolled in or who will not be enrolled in the course of instruction necessary to become a certified attendant under Kansas law. Cited herein: K.S.A. 65-431 as amended by L. 1984, Ch. 244; K.S.A. 1983 Supp. 65-4326; K.S.A. 48-925; 48-932.

Author: Robert T. Stephan
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As amended by chapter 282, section 5, the provisions of chapter 187, section 11 of the 1984 Session Laws prohibit the selling, giving or receiving of lists of names and addresses derived from public records, for the purpose of selling or offering for sale any property or service to the persons listed therein, subject to three exceptions. Section 6 of chapter 187, as amended by section 3 of chapter 282 of the 1984 Session Laws, further requires that any person who obtains a list of names and addresses certify that: (1) he or she will not use the information for the purpose of selling or offering for sale any property or services, and (2) will not give, sell or otherwise make available the list to another person so that the latter may sell or offer for sale any property or service. Accordingly, a person may not make commercial use of information derived from such lists, either directly or through the sale of the lists themselves. Cited herein: K.S.A. 1983 Supp. 21-3913; 45-201 (both repealed, L. 1984, ch. 187); 74-2012, as amended by L. 1984, ch. 282, section l; L. 1983, ch. 171, section 11, L. 1984, ch. 187, sections 6, 11; L. 1984, ch. 282, sections 3, 5.

Author: Robert T. Stephan
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A groundwater management district organized pursuant to K.S.A. 82a-1020 e̲t̲ s̲e̲q̲., is required, pursuant to K.S.A. 82a-1026, to hold annual meetings for the purpose of electing members of the board of directors. Only persons who are defined as eligible voters by K.S.A. 82a-1021(e) may vote or serve as directors, and the district may if it chooses require voters to complete affidavits attesting to their eligibility. Such affidavits showing that the person is an eligible voter are subject to the Kansas Open Records Act, K.S.A. 1984 Supp. 45-215 e̲t̲ s̲e̲q̲., and are not included under any of the provisions of K.S.A. 1984 Supp. 45-221 which allow certain records to be closed. They should therefore be disclosed, subject to the other provisions of the act. Cited herein: K.S.A. 25-2320; K.S.A. 1984 Supp. 45-216; 45-221; K.S.A. 82a-1021; 82a-1023; 82a-1025; 82a-1026; 82a-1027.

Author: Robert T. Stephan
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The common law doctrine of incompatibility of offices precludes one person from simultaneously holding the offices of city council member and clerk of the municipal court in a city of the third class having a mayor-council form of government. Cited herein: K.S.A. 12-4108.

Author: Robert T. Stephan
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The provisions of subsections (c) and (d) of K.S.A. 1983 Supp. 77-426, which allow the legislature to reject, modify or revoke an administrative rule and regulation by means of the adoption of a concurrent resolution, are unconstitutional. Such action by the legislature is an unlawful usurpation of the governor's constitutional power to administer and enforce the laws. Such action violates the constitutional doctrine of separation of powers. In addition, the legislative oversight mechanism prescribed in subsections (c) and (d) of K.S.A. 1983 Supp. 77-426 is unconstitutional for the reason that it attempts to authorize the legislature to make law, without following the mandatory procedures of the Kansas Constitution. The Kansas constitution requires that any law be enacted only by bill [not by resolution or concurrent resolution]; that every bill contain the constitutionally-specified enacting clause; and that all bills passed by the legislature be presented to the governor for approval or disapproval. The procedure set forth in subsections (c) and (d) of K.S.A. 1983 Supp. 77-426 does not meet these constitutional requirements and is unconstitutional. Cited herein: K.S.A. 1983 Supp. 77-426; Kan. Const., Art. 2, sections 14, 20.

Author: Robert T. Stephan
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Under the provisions of K.S.A. 1984 Supp. 22-2908 (as amended by L. 1985, ch. 48, section 16) and K.S.A. 12-4415 (as amended by L. 1985, ch. 48, section 11), a county attorney or city attorney is not prohibited from entering into a diversion agreement in lieu of further criminal proceedings if a defendant (charged with an alcohol related offense) has been convicted of or pleaded n̲o̲l̲o̲ c̲o̲n̲t̲e̲n̲d̲e̲r̲e̲ to a violation of an alcohol related offense in a state other than Kansas. However, a previous conviction in another state must be considered in determining whether diversion of a defendant is in the interest of justice. Cited herein: K.S.A. 1984 Supp. 8-1567 (as amended by L. 1985, ch. 50, section 5), K.S.A. 12-4415 (as amended by L. 1985, ch. 48, section 11), K.S.A. 1984 Supp. 22-2908 (as amended by L. 1985, ch. 48, section 16); L. 1983, ch. 37, section 2.

Author: Robert T. Stephan
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K.S.A. 19-702 provides that it is the duty of the county attorney to prosecute all cases arising out of the criminal statutes of this state which arise in his or her county. If such a violation occurs, it is immaterial whether it takes place within or without the limits of any city located in the county, or whether the officer issuing the citation or making the arrest is an employee of the city or county. In any violation of a state criminal statute, it is the function of the county attorney to prosecute, and such prosecution may not be declined, or additional conditions attached (i̲.̲e̲.̲ payment of costs) on the grounds that the violation took place within the city. Cited herein: K.S.A. 1983 Supp. 8-1567, K.S.A. 12-4111, 12-4113, 19-702, 19-706b.

Author: Robert T. Stephan
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No state statute prescribes a procedure whereby a city of the third class may change from the commission form of government to the mayor-council form of government. However, the governing body of such a city may, by ordinance adopted pursuant to home rule powers, prescribe that the city shall revert to the mayor-council form of government on the date of the next city election, and provide for the election of a mayor and five council members at that election. Cited herein: K.S.A. 12-184, 12-1019, 12-1027, 12-1035, 12-1036h, 12-10a09, 13-1812, 14-1807, 15-124, 15-1201, 15-1704, Kan. Const., Art. 12, section 5.