Attorney General Opinion No. 1985-127 PDF Download

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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Languages : en
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Pursuant to K.S.A. 1985 Supp. 8-128(a), an all-terrain vehicle [as defined by K.S.A. 1984 Supp. 8-126(bb)], may be operated on the public streets of a city of the second class. If operated on such public streets between the hours of 1/2 hour after sunset and 1/2 hour before sunrise, an all-terrain vehicle must be equipped with lights of the type required by law for motorcycles. Additionally, unless it is used for agricultural purposes, such a vehicle must be registered pursuant to K.S.A. 8-127(a). Exclusive use on private property removes the need for lights and for registration. Cited herein: K.S.A. 1984 Supp. 8-126; K.S.A. 8-127; K.S.A. 1984 Supp. 8-128.

Author: Robert T. Stephan
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K.S.A. 1985 Supp. 12-1908(b) provides that a school district may levy a tax to meet the needs of its recreation commission, not to exceed one mill, which is in addition to the one mill authorized by K.S.A. 12-1904 and amendments thereto. K.S.A. 1985 Supp. 12-1908(e), however, imposes the limitation that before a tax levying authority makes such additional levy, the school district shall adopt a resolution authorizing the making of the levy. Once the resolution is published, the tax levy may be made without an election unless a petition in opposition thereto is filed in accordance with the statute. If a valid petition is filed in opposition to the proposed tax levy increase, the county clerk may not certify the school district budget with the mill increase figured in unless and until a majority of all electors voting have approved the proposed mill levy increase at a regular or special election. A special election may be called after the August 25 certification deadline to determine the voters' will, as this deadline is merely directory, not mandatory. As soon as the election results are determined, the school district shall submit its proposed budget, either with or without the mill increase figured in, to the county clerk for certification. Cited herein: K.S.A. 12-1904, as amended by L. 1986, ch. 80, section 2; K.S.A. 1985 Supp. 12-1908, as amended by L. 1986, ch. 80, section 4; K.S.A. 79-1801; 79-2930.

Author: Robert T. Stephan
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The common law doctrine of incompatibility of offices does not preclude one person from simultaneously holding the offices of deputy sheriff and mayor of a third class city having the mayor-council form of government. Cited herein: K.S.A. 15-301, 15-308, K.S.A. 1984 Supp. 19-805, K.S.A. 19-812, 19-813.

Author: Robert T. Stephan
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K.S.A. 1984 Supp. 8-128(a) provides limits upon the locations in which an all-terrain vehicle [as defined by K.S.A. 1984 Supp. 8-126(bb)) may be operated. The statute contains a total prohibition on the operation of such vehicles on interstate, federal or state highways, and on other public highways, streets or roads at certain times without proper lighting. While the subsection also states that no such vehicle shall be operated within the limits of any first class city, this language should not be read as constituting a prohibition on the use of such vehicles on private property, given the general limitation of statutes in Chapter 8 to operation of vehicles on public roads and highways. However, if a city of the first class wished to enact an ordinance which is more restrictive of the use of all-terrain vehicles within the city limits, it would have the authority to do so under the home rule provisions of Article 12, Section 5 of the Kansas Constitution. Cited herein: K.S.A. 1984 Supp. 8-126, as amended by 1985 House Bill No. 2222; K.S.A. 8-127, as amended by 1985 Senate Bill No. 318; K.S.A. 1984 Supp. 8-128; K.S.A. 8-1102; Kan. Const., Art. 12, section 5.

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 county clerk. Cited herein: K.S.A. 79-1965, 79-5004.

Author: Robert T. Stephan
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Under the provisions of K.S.A. 75-6116 (as amended by L. 1985, ch. 293, 11), the obligation of a city to pay attorneys fees incurred by a city officer in defending a civil rights action is subject to the conditions and limitations prescribed by K.S.A. 75-6108. Those conditions include the filing of a written request (within 15 days after service of process upon the employee) that the city provide for the defense of the employee. K.S.A. 75-6108(d) and (e). Where no such request is filed, a city is not liable for attorneys fees incurred by the employee; however, the city governing body may, in its discretion, pay attorneys fees notwithstanding the failure to file a written request. Cited herein: K.S.A. 75-6102, 75-6108; 75-6116; L. 1985, ch. 293, section 1.

Author: Robert T. Stephan
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The abandonment of the commission form of government by a city of the second class does not invalidate city ordinances adopted under that form of government. Cited herein: K.S.A. 14-1807.

Author: Robert T. Stephan
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The decision of the United States Supreme Court in R̲o̲e̲ ̲v̲.̲ ̲W̲a̲d̲e̲, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), permits a state to regulate or even prohibit abortion after the stage of viability, except where it is necessary, in appropriate medical judgment, to preserve the life or health of the mother. Such regulations must be narrowly tailored to fit the precise state interest at stake. As a result, attempts to specify a particular time during a pregnancy when viability occurs or to interfere with the judgment of the attending physician have been struck down as unconstitutional, although general prohibitions on post-viability abortions have been upheld. Cited herein: U.S. Const., Fourteenth Amend.

Author: Robert T. Stephan
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K.S.A. 72-5308a authorizes the teacher in charge of each public school classroom to observe, at his or her option, a brief period of silence at the opening of each school day. Such a period of silence is not to be conducted as a religious exercise, but is to be used for silent prayer or silent reflection on the activities of the day. In that both the statute itself and the legislative history of this and subsequent bills indicates a legislative purpose which is not exclusively religious, the statute is not invalid under the holding of the United States Supreme Court in W̲a̲l̲l̲a̲c̲e̲ ̲v̲.̲ ̲J̲a̲f̲f̲r̲e̲e̲, -- U.S. --, 105 S. Ct. 2479 (1985). Cited herein: K.S.A. 72-5308a; U.S. Const., First Amend.