Attorney General Opinion No 1987 065
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| Author | : Robert T. Stephan |
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| Release | : 1987 |
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Under the provisions of Article 3, section 5 of the Kansas Constitution, no member of the Supreme Court Nominating Commission shall, while he or she is a member, hold any other "public office" by appointment. The term "public office" refers to the common-law concept of a public office, and except where the office of city attorney has been stripped of all prosecutorial and other sovereign power (through the exercise of home rule powers), a city attorney holds a public office. Cited herein: Kan. Const., Article 3, section 5.
| Author | : Robert T. Stephan |
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| Release | : 1987 |
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Since it is the client's intent which governs the distinction between privileged and non-privileged communications, a determination of whether or not information exchanged between attorney and client is privileged requires a case-by-case consideration. To ensure compliance with the dictates of Canon 4 of the Code of Professional Responsibility and K.S.A. 60-426, when a supervising agency requests that an attorney release particular client information for enumerative or evaluative purposes, the attorney may either obtain the client's consent to do so, or, if the client refuses, compile the requested data in a less intrusive manner. If, however, the agency requests the data for purposes of determining a client's financial eligibility onto satisfy funding requirements, the exception to the privilege under DR-4-101(C)(4) would apply, making the aforementioned precautions unnecessary. Cited herein: K.S.A. 45-217; 45-221; 60-426; K.S.A. 1986 Supp. 20-3100, Supreme Court Rule No. 225, D.R. 4-101.
| Author | : Robert T. Stephan |
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| Release | : 1987 |
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The intent of L. 1987, ch. 215 is to encourage individuals to serve as volunteers for certain nonprofit organizations by granting to the volunteer immunity from liability for negligent acts or omissions. There are limitations to this immunity. For the act to apply, the organization must carry general liability insurance which will pay on behalf of the insured when an individual suffers loss for which the insured is liable. The exact amount and type of insurance required is to be determined in light of the exposure to liability which arises out of the organization's activities. Cited herein: L. 1987, ch. 215, sec. 1 (to be codified at K.S.A. 1987 Supp. 60-3601).
| Author | : Robert T. Stephan |
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| Release | : 1987 |
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District attorneys and their agents are state employees for purposes of the Kansas Tort Claims Act. Cited herein: K.S.A. 22a-101, 22a-106, 25-2505, 75-6101, 75-6102.
| Author | : Robert T. Stephan |
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| Release | : 1987 |
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Service of process is a condition precedent to an employee's request for the provision of defense counsel by a governmental entity, unless such condition is waived. If, after the employee has been served, the entity lawfully refuses to provide for such defense, and if the request was made in accordance with the statute, then the entity must reimburse the employee for attorney expenses incurred as a result of the retention of private counsel. Absent service of process, timely request for, and proper refusal of providing legal defense counsel, no right is conferred on the employee to retain private counsel at the expense of the governmental entity. Cited herein: K.S.A. 75-6103, 75-6108, 75-6109.
| Author | : Robert T. Stephan |
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| Release | : 1987 |
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Written instruments representing liens arising pursuant to the provisions of CERCLA, 42 U.S.C.S. section 9601 e̲t̲ s̲e̲q̲., or ERISA, 29 U.S.C.S. section 1001 e̲t̲ s̲e̲q̲., which are properly proved or acknowledged and certified are entitled to recording by the register of deeds in the county in which the real property affected by the instrument is located. Such instruments which do not meet these initial filing requirements should be filed in the office of the clerk of the United States District Court for the district in which the real property is located. The filing fees prescribed by K.S.A. 28-115 are appropriate for the filing of such instruments, and the instruments should be filed so as to provide notice to third parties. Cited herein: K.S.A. 28-115; 58-2221; 79-2601; 79-2607; 79-2608; 26 U.S.C.S. section 6323; 29 U.S.C.S. sections 1001, 1362, 1363, 1364, 1368; 42 U.S.C.S. sections 9601, 9607.
| Author | : Robert T. Stephan |
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| Release | : 1982 |
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Law enforcement officers employed by a city may, pursuant to the implied authority contained in K.S.A. 1981 Supp. 8-1001 and K.S.A. 22-2401a, transport an arrested person beyond the territorial limits of the city employing such officers for the respective purposes of administering a chemical test of the person's blood or breath and incarceration in the county jail. Cited herein: K.S.A. 1981 Supp. 8-1001, K.S.A. 19-1930, 22-2401, 22-2401a.
| Author | : Robert T. Stephan |
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| Release | : 1987 |
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The primary responsibility for transporting a prisoner to court in a civil case under a writ of a̲d̲ t̲e̲s̲t̲i̲f̲i̲c̲a̲n̲d̲u̲m̲ lies with the custodian. In the absence of statutory or judicial direction, there is no authority to cause third parties who are neither custodians nor parties to the litigation to bear the costs of transporting a prisoner. Cited herein: K.S.A. 19-812; 60-1503; 75-5201; 28 U.S.C. sections 2241 and 2243.
| Author | : Robert T. Stephan |
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| Release | : 1990 |
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Pursuant to K.S.A. 1989 Supp. 74-7312(a), 74-7301(d) and 74-7305(c)(1), the state should be subrogated to the victim's receipt of restitution to the extent of the victim's award from the crime victims compensation board. Cited herein: K.S.A. 21-4610; K.S.A. 1989 Supp. 74-7301; 74-7305; 74-7312.
| Author | : Robert T. Stephan |
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| Release | : 1987 |
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K.S.A. 25-302a requires that the circulator of a petition circulated pursuant to that statute be a registered voter of the county in which the petition is circulated. The statute requires additionally that petitions circulated under K.S.A. 25-302a be examined for sufficiency pursuant to the provisions of K.S.A. 25-3601 e̲t̲ s̲e̲q̲. K.S.A. 25-3602(c) states that the circulator of a petition shall be a resident of the political or taxing subdivision in which the election is sought to be held. In that a person may have only one residence under Kansas law, an individual in Kansas is prohibited from claiming simultaneous residence in one county, and voter registration (and thus residence) in another county. Accordingly, in light of these statutory provisions, the circulator of a petition may not collect signatures from residents of other counties even if they sign the petition while in the circulator's county. Cited herein: K.S.A. 25-302a; 25-407; 25-3602; K.S.A. 1986 Supp. 77-201.
