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Author: Robert T. Stephan
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The "most favored lender" doctrine established under 12 U.S.C. section 85 permits national banks to charge the maximum rate of interest permitted under state law to any competing lender. Section 521 of P.L. 96-221, the Depository Institutions Deregulatory and Monetary Control Act of 1980, accords most favored lender status to state-chartered, federally-insured banks. Thus, by virtue of the most favored lender doctrine and the express provisions of said section 521 (12 U.S.C. section 1831d), state banks in Kansas may charge interest at a rate which is the greatest of either: (1) one percent over the discount rate on ninety-day commercial paper in effect at the federal reserve bank in the federal reserve district where the bank is located; (2) the rate specifically prescribed for state banks by the laws of Kansas; or (3) the highest rate available to lenders generally pursuant to the laws of Kansas. Additionally, interest rates on agricultural and business loans of $1,000 or more have been preempted by federal legislation, and such rates are now prescribed by section 324 of P.L. 96-399. Cited herein: K.S.A. 1980 Supp. 16a-2-401, as amended by section 1 of 1981 House Bill No. 2578, L. 1980, ch. 76, section 1, 12 U.S.C. sections 85, 86a, 1831d, P.L. 96-221, sections 501, 511, 512, 521, 522, 523, 525, P.L. 96-399, section 324, 12 C.F.R. section 7.7310.
Author: Robert T. Stephan
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Languages : en
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Book Description
The "most favored lender" doctrine established under 12 U.S.C. section 85 permits national banks to charge the maximum rate of interest permitted under state law to any competing lender. Section 521 of P.L. 96-221, the Depository Institutions Deregulatory and Monetary Control Act of 1980, accords most favored lender status to state-chartered, federally-insured banks. Thus, by virtue of the most favored lender doctrine and the express provisions of said section 521 (12 U.S.C. section 1831d), state banks in Kansas may charge interest at a rate which is the greatest of either: (1) one percent over the discount rate on ninety-day commercial paper in effect at the federal reserve bank in the federal reserve district where the bank is located; (2) the rate specifically prescribed for state banks by the laws of Kansas; or (3) the highest rate available to lenders generally pursuant to the laws of Kansas. Additionally, interest rates on agricultural and business loans of $1,000 or more have been preempted by federal legislation, and such rates are now prescribed by section 324 of P.L. 96-399. Cited herein: K.S.A. 1980 Supp. 16a-2-401, as amended by section 1 of 1981 House Bill No. 2578, L. 1980, ch. 76, section 1, 12 U.S.C. sections 85, 86a, 1831d, P.L. 96-221, sections 501, 511, 512, 521, 522, 523, 525, P.L. 96-399, section 324, 12 C.F.R. section 7.7310.
Author: Robert T. Stephan
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The conclusion reached in Attorney General Opinion No. 81-158, that a state's interest rate limitations on business and agricultural loans of $1,000 or more have been preempted by federal legislation, is affirmed. However, because such preemption is operative only if the federally-prescribed interest rate limitation exceeds a state's limitation, such preemptive interest rate is not applicable in Kansas, since Kansas statutes no longer impose any interest rate limitations on business and agricultural loans. Cited herein: K.S.A. 1980 Supp. 16-207 (as amended by L. 1981, ch. 88, section 1), 16a-1-301 (as amended by L. 1981, ch. 93, section 5), 12 U.S.C.A. section 86a, P.L. 96-221, section 521, P.L. 96-399, section 324.
Author: Robert T. Stephan
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Based on essentially the same rationale expressed in Attorney General Opinion No. 81-158, which concluded that section 521 of P.L. 96-221, the Depository Institutions Deregulatory and Monetary Control Act of 1980, accords most favored lender status to state-chartered, federally-insured banks, section 522 of that act accords most favored lender status to state-chartered, federally-insured savings and loan associations. By virtue of that status, state savings and loan associations in Kansas may charge interest (other than in connection with a mortgage of residential real property) at a rate which is the greatest of the following: (1) the rate permitted state savings and loan associations under Kansas law; (2) one percent over the federal reserve ninety-day discount rate; or (3) the highest rate available to lenders generally pursuant to the laws of Kansas. Cited herein: K.S.A. 1980 Supp. 16-207a, 12 U.S.C. sections 85, 1724, 1730g, 1831d, P.L. 96-221, sections 501, 521, 522, 523, 12 C.F.R. section 570.11.
Author: Robert T. Stephan
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Through the imposition of fines for unlawful conduct, K.S.A. 1980 Supp. 8-1901(d) imposes criminal liability. In addition, subsection (a) of that statute does not appear to violate the United States Constitution's Equal Protection Clause, although it only imposes liability upon a limited class of persons. Moreover, that subsection appears to convey a sufficiently definite warning as to the conduct proscribed therein, so as to avoid being unconstitutionally vague and uncertain. Cited herein: K.S.A. 1980 Supp. 8-1901, 8-1909, K.S.A. 8-2116, 8-2204, 21-3105, K.S.A. 1980 Supp. 21-4503, U.S. Const., Amend. XIV.
Author: Robert T. Stephan
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Neither the provisions of K.S.A. 1980 Supp. 19-1803, nor the common law doctrine of incompatibility of offices, precludes a person from concurrently serving on the board of trustees of a county hospital and on the board of education of a local school district. Cited herein: K.S.A. 1980 Supp. 19-1803.
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 councilman and municipal judge in a city of the third class having a mayor-council form of government. Cited herein: K.S.A. 15-204, 15-209.
Author: Robert T. Stephan
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K.S.A. 1980 Supp. 31-134(b) provides that the rules and regulations adopted by the state fire marshal shall be of uniform force and effect throughout the state. Pursuant to this statute, K.A.R. 1980 Supp. 22-3-1 adopts by reference the 1976 edition of the Life Safety Code, containing sections which regulate structures having combined mercantile and residential occupancies. For the purposes of enforcement, K.S.A. 1980 Supp. 31-139 gives the state fire marshal and those persons designated by K.S.A. 1980 Supp. 31-137, the authority to inspect buildings subject to the code. If admittance to a building subject to the Code is denied, a search warrant, which may be issued ex parte, must be obtained prior to entry. Cited herein: K.S.A. 1980 Supp. 31-133, 31-134, 31-137, 31-139, K.A.R. 1980 Supp. 22-3-1, U.S. Const., Amend. IV.
Author: Robert T. Stephan
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Pursuant to K.S.A. 9-1403, the designation of a specific "period of peak deposits" is permissible only where such period occurs at "tax paying time" or "tax distributing time." Cited herein: K.S.A. 1980 Supp. 9-1402, K.S.A. 9-1403, K.S.A. 1980 Supp. 12-1678a, and 1981 House Bill No. 2235.
Author: Robert T. Stephan
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To be consistent with requirements of the United States Constitution, the provisions of K.S.A. 72-5393 can, and must, be construed as neither requiring nor authorizing the provision of therapeutic psychological and speech and hearing services, at public expense and by public employees, on parochial school premises. Instead, said provisions must be construed as requiring that such services be provided at the "truly religiously neutral locations" specified in the statute, i.̲e̲.̲, in the public schools of the school district, in public centers, or in mobile units located off the parochial school premises. Cited herein: K.S.A. 72-5392, 73-5393, U.S. Const., Amend. I, XIV.
Author: Robert T. Stephan
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Under the provisions of K.S.A. 1980 Supp. 22-4504 (as amended by L. 1981, ch. 157, sec. 1), the board of supervisors of panels to aid indigent defendants is empowered to adopt rules and regulations concerning the ability of a defendant in a criminal action to retain counsel to assist in his defense. Such rules and regulations specifically relate to the income, assets and anticipated costs of representation of a defendant. Pursuant to the 1981 amendment, such rules and regulations are controlling on any determination by a judge or magistrate as to whether a defendant is financially unable to employ counsel. Moreover, these rules and regulations are adopted in accordance with K.S.A. 77-415 e̲t̲ s̲e̲q̲., thus allowing the legislature to modify or reject them through the adoption of a concurrent resolution (K.S.A. 1980 Supp. 77-426). Insofar as the making of indigency determinations involves the resolution of questions of fact, which is a judicial and not a legislative function, control by the legislature over such determinations is an impermissible interference with the authority of another department of government. Accordingly, those provisions of L. 1981, ch. 157 which require the submission of such rules and regulations to the legislature and which make any rules and regulations so adopted binding on district courts are unconstitutional as violative of the separation of powers doctrine. Cited herein: K.S.A. 1980 Supp. 22-4501, 22-4504 (as amended by L. 1981, ch. 157, section 1), 22-4507, K.S.A. 22-4512, K.S.A. 1980 Supp. 22-4514, 77-415 (as amended by L. 1981, ch. 157, section 3), Kansas Constitution, Article 3, Section 1, United States Bill of Rights, Sixth Amendment, Fourteenth Amendment.
