Attorney General Opinion No. 1982-137 PDF Download
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Author: Robert T. Stephan
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Since the legislature did not exempt the tax levy authorized by K.S.A. 1981 Supp. 12-16,102(c) from the aggregate mill levy limitation prescribed in K.S.A. 79-1962, any levy made pursuant to said subsection must be included in the aggregate mill levy limitation prescribed in the latter statute. Cited herein: K.S.A. 1981 Supp. 12,16,102, K.S.A. 79-1962, 79-5001.
Author: Robert T. Stephan
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Since the legislature did not exempt the tax levy authorized by K.S.A. 1981 Supp. 12-16,102(c) from the aggregate mill levy limitation prescribed in K.S.A. 79-1962, any levy made pursuant to said subsection must be included in the aggregate mill levy limitation prescribed in the latter statute. Cited herein: K.S.A. 1981 Supp. 12,16,102, K.S.A. 79-1962, 79-5001.
Author: Robert T. Stephan
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Pursuant to K.S.A. 28-137 (as amended by L. 1982, ch. 166, section 4), the party requesting publication of a legal notice in any court action or proceeding is responsible for payment of the fees and charges of the publisher, and a publisher may properly refuse to publish any such notice or to file proof of publication of the notice, unless such payment is made. However, there is nothing to preclude a publisher from accommodating the party requesting such publication and awaiting payment of the publication fees and charges until such time as costs are taxed in the action or proceeding. Cited herein: K.S.A. 28-137 (as amended by L. 1982, ch. 166, section 4).
Author: Robert T. Stephan
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The increased penalty provisions of K.S.A. 21-4501 (as amended by L. 1982, ch. 137, section 1) and K.S.A. 21-4608, (as amended by L. 1982, ch. 150, section 1) do not apply to crimes committed before July 1, 1982 (the effective date of the amendments), but are applicable to sentencing for crimes committed after July 1, 1982. The term "conditional release," as used in K.S.A. 21-4608 (as amended), refers to release from incarceration, subject to rules and conditions imposed by the releasing authority, following imprisonment for the maximum term imposed, minus work and good behavior credits. Cited herein: K.S.A. 21-4501 (as amended by L. 1982, ch. 137, section 1), 21-4608 (as amended by L. 1982, ch. 150, section 1), 22-3718, U.S. Const., Art. I, section 9.
Author: Robert T. Stephan
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1982 House Bill No. 2694 authorizes publishers of legal notices to charge an amount not to exceed either the amounts authorized by the schedule contained in Section 4(a)(2) or an amount less than or equal to the lowest regular classified advertising rate for commercial customers. If the latter option is selected and the lowest regular commercial advertising rates increase in a given year beyond 15% of the legal notice rate from the immediately preceding year, the rate for legal notices shall not increase more than 15% per year. Cited herein: K.S.A. 28-137, as amended by 1982 House Bill No. 2694.
Author: Robert T. Stephan
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K.S.A. 55-136 e̲t̲ s̲e̲q̲. require the surface pipe of any oil or gas well to be cemented below the fresh water strata, in order to protect such strata from pollution, and apply both to wells drilled with rotary equipment or cable tools. The act is supplemented by rules and regulations adopted by the Kansas Corporation Commission, and contains criminal penalties for any person, firm, association or corporation who violates any of the sections thereof. While responsibility for the enforcement of such criminal penalties lies with district and county attorneys, insofar as the act is uniformly applicable to all counties, a county may not employ its home rule authority to enact a resolution on this same subject. Cited herein: K.S.A. 55-136, 55-137, 55-138, K.A.R. 82-2-123, Kansas Constitution, Article 12, Section 5.
Author: Robert T. Stephan
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District courts appear to have the authority to entertain a motion for new trail in a juvenile proceeding if the motion is timely filed and if double jeopardy problems would not arise. A juvenile does not, however, have a statutory or constitutional right to a new trial. Cited herein: K.S.A. 38-801 et seq., repealed L. 1982, ch. 182; 38-1601; 38-1632; 38-1653; 38-1665; 38-1681; 38-1683; 60-259; 60-2103; K.S.A. 44-556, as amended by L. 1979, ch. 158, section 1.
Author: Robert T. Stephan
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An instrument which purports to assign a debtor's right to receive payment under a contract for the sale of real estate represents a security interest in personality and must be filed accordingly in order to perfect the creditor's security interest. The instrument may also be recorded in the office of the register of deeds in the county in which the real estate is located, as the instrument is such that "real estate may be affected thereby." K.S.A. 58-2221. Further, since the instrument is not a mortgage of real estate as defined in K.S.A. 79-3101, no mortgage registration fee may be assessed for such recording. If, however, the instrument incorporates by reference an executory contract for the sale of the real estate which has never been recorded, and thus upon which no mortgage registration fee has been paid, then a mortgage registration fee must be collected based on the amount of the indebtedness involved in the executory contract. This is so because one cannot do indirectly (record an executory contract without paying mortgage registration fees) that which one could not do directly. Cited herein: K.S.A. 58-2221; 79-3101; K.S.A. 1985 Supp. 79-3102; K.S.A. 84-9-102; K.S.A. 1985 Supp. 84-9-401.
Author: Robert T. Stephan
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As amended by L. 1982, ch. 144, section 5, K.S.A. 1981 Supp. 8-1567 provides that a person convicted of a violation of the offense of operating a motor vehicle while under the influence of alcohol may be required to perform public or community service work as an alternative to incarceration or payment of a fine. In assigning the work to be performed, a judge or court services division would be exercising judicial and discretionary functions, respectively, and would be exempt from liability under the Tort Claims Act, K.S.A. 1981 Supp. 75-6101 e̲t̲ s̲e̲q̲. However, as noted by Attorney General Opinion Nos. 81-98 and 82-157, the recipient organization (including local governments and non-profit corporations) may be liable for injuries and damages inflicted or suffered by persons acting within the scope of their designated community service duties. Cited herein: K.S.A. 1981 Supp. 8-1567 (as amended by L. 1982, ch. 144, section 5), K.S.A. 21-4610, K.S.A. 1981 Supp. 75-6102, 75-6104.
Author: Robert T. Stephan
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As amended by 1982 Senate Bill No. 699, K.S.A. 1981 Supp. 8-1567 provides [at subsection (n)] that a city may enact an ordinance which prohibits or makes unlawful the same acts as are dealt with by the statute, provided that the ordinance's minimum penalties are the same as the statutes for any given violation, and the ordinance's maximum penalty does not exceed that of the statute. Apart from these limits, K.S.A. 1981 Supp. 8-1567 as amended does not preempt a city from taking action in this area. As amended by 1982 Senate Bill No. 699, K.S.A. 1981 Supp. 8-1567(c), (d) and (e) prohibit a prosecuting attorney from entering into any plea-bargaining agreement by which a defendant enters a guilty or no contest plea to a lesser offense than that originally charged. While no sanctions against such conduct exist under the statute, provisions of the general ouster law could be applied against prosecuting attorneys who violate the prohibition against plea-bargaining. Cited herein: K.S.A. 1981 Supp. 8-1567, as amended by 1982 Senate Bill No. 699, K.S.A. 22-2907, 22-2908.
Author: Robert T. Stephan
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As amended by L. 1982, ch. 144, K.S.A. 1981 Supp. 8-1567 contains new provisions for the sentencing of persons who are convicted of operating a vehicle while under the influence of alcohol. Additionally, the act amends K.S.A. 1981 Supp. 8-1001 to admit into evidence the defendant's refusal to take a chemical test for the presence of alcohol. While the act does not specifically provide that these changes will apply only to offenses committed after its effective date of July 1, 1982, such a result is necessary in view of the substantive, as opposed to merely procedural, nature of these two amendments. Accordingly, the above-referenced amendments are applicable only to offenses committed after the effective date of the act. Cited herein: K.S.A. 1981 Supp. 8-1001, 8-1567, both as amended by L. 1982, ch. 144, K.S.A. 21-3102, 22-4618.
