Attorney General Opinion No 1987 034
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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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K.S.A. 34-229 was amended by 1986 Senate Bill No. 518 to make grain warehouse bonds nonaccumulative. Thus, Kansas has joined the majority of the states and the federal government in disallowing the "stacking" of bonds. Cited herein: K.S.A. 34-229; L. 1986, ch. 153, section 1.
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 | : 1986 |
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An officer or agent of a duly incorporated humane society may take into custody any animal which clearly shows evidence of cruelty. K.S.A. 21-4311. The humane society may not, however, retain custody of the animal where the owner is not prosecuted or convicted of any violation of K.S.A. 21-4310 (cruelty to animals). Cited herein: K.S.A. 21-4310, 21-4311; U.S. Const., 14th Amendment.
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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Topeka Code Section 34-193(6), which does not permit persons who have been previously arrested, but not convicted on drug charges, to obtain a license to carry a firearm while employed as a security guard, is violative of both state law and the Constitution of the United States. Cited herein: K.S.A. 21-3109; U.S. Const., 14th Amendment.
Author | : Robert T. Stephan |
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Release | : 1987 |
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The statutory and regulatory scheme found in K.S.A. 1986 Supp. 55-609(c), 55-711(c) and K.A.R. 82-3-206 imposes an assessment to pay the conservation division expenses and administrative costs. Under this scheme the first purchaser pays the assessment and deducts it from payment of production to producers and royalty owners. Generally, as a matter of federal constitutional law, the federal government and Indian tribes are exempt from state taxation absent congressional consent. In our judgment there is implicit consent to tax the federal government in 30 U.S.C. sections 189 which authorizes a tax against a lessee of the federal government. This federal statute has been interpreted by the U.S. Supreme Court to authorize the tax against the lessee "as if the government were not concerned." There is also congressional authorization to tax the mineral interests of Indian tribes if the interests result from a lease issued to a non-Indian lessee pursuant to the 1924 Act found in 25 U.S.C. sections 398. However, this authorization does not exist in the Indian Mineral Leasing Act of 1938 found in 25 U.S.C. sections 396a. Therefore Indian mineral interests resulting from a lease issued to a non-Indian lessee pursuant to the 1924 Act are not exempt and those pursuant to the 1938 Act are exempt from the statutory and regulatory scheme in question. Cited herein: K.S.A. 1986 Supp. 55-609, 55-711, U.S. Const., Art. IV, sections 3, cl. 2; 30 U.S.C. sections 189, 25 U.S.C. sections 396a; 398.
Author | : Robert T. Stephan |
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Release | : 1988 |
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While there is no express provision in the Kansas Constitution that prohibits the legislature from appointing its members to administrative boards or commissions, the separation of powers doctrine prohibits the legislature from usurping the powers of another governmental branch. In view of the case law history of this doctrine and the facts with which we have been presented, we cannot conclusively say that legislative membership on the emergency medical services board is unconstitutional under the separation of powers doctrine. Cited herein: K.S.A. 65-4316; 74-2127; Kan. Const., Art. 2, section 14; 1988 House Bill No. 2639.
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 | : 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.