Attorney General Opinion No. 1987-183 PDF Download
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Author: Robert T. Stephan
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When a county obtains an easement to create a county road thereby facilitating public travel, the extent of county interest in and authority over the land is defined by the purpose and character of the easement. When the county possesses an easement granted for a specific purpose and use, the county has no authority to grant permission for other uses outside the scope of the easement. Use of seismographic equipment to promote another public purpose that does not advance the purpose of public travel is beyond the scope of the use for which the easement was granted. Cited herein: K.S.A. 68-182.
Author: Robert T. Stephan
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When a county obtains an easement to create a county road thereby facilitating public travel, the extent of county interest in and authority over the land is defined by the purpose and character of the easement. When the county possesses an easement granted for a specific purpose and use, the county has no authority to grant permission for other uses outside the scope of the easement. Use of seismographic equipment to promote another public purpose that does not advance the purpose of public travel is beyond the scope of the use for which the easement was granted. Cited herein: K.S.A. 68-182.
Author: Robert T. Stephan
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K.S.A. 41-2701 e̲t̲ s̲e̲q̲., as amended by L. 1987, ch. 182 and L. 1987, ch. 183, regulates the sale and consumption of cereal malt beverages. However, neither Article 27, nor any subsequent amending legislation, contains a definition for "premises." Therefore, since the consumption of cereal malt beverages is not an area of concern exclusively reserved by the state, a local licensing authority may prescribe, within reason, its own definition of what constitutes a "premises." Cited herein: K.S.A. 41-2701, as amended by L. 1987, ch. 182, section 97; K.S.A. 41-2702, as amended by L. 1987, ch. 182, section 98; K.S.A. 41-2704, as amended by L. 1987, ch. 182, section 100, and by L. 1987, ch. 183, section 4; K.A.R. 14-21-2.
Author: Robert T. Stephan
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Student activities passes purchased by a nonoptional activity fee and which provide admission to activities or events in addition to intercollegiate athletic events are exempt from the surcharge required in K.S.A. 1986 Supp. 74-2915, as amended by 1987 Senate Bill No. 183. Other student activities passes providing admission to intercollegiate athletic events and season tickets to such events are subject to the surcharge. Cited herein: K.S.A. 1986 Supp. 74-2915, as amended by 1987 Senate Bill No. 183.
Author: Robert T. Stephan
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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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K.S.A. 41-2704, as amended by L. 1987, ch. 182, section 100, and as further amended by L. 1987, ch. 183, section 4, authorizes Sunday sales of cereal malt beverages for on premises consumption in licensed establishments which meet the 30% food sale conditions and the local ordinance requirements of Section 4(b)(2), of L. 1987, ch. 183. Sunday carry out sales of cereal malt beverages are not authorized by the specific language contained in Section 4(b)(2). Cited herein: K.S.A. 41-2704, as amended by L. 1987, ch. 182, section 100, and by L. 1987, ch. 183, section 4; L. 1937, ch. 213, 214; Kan. Const., Art. 15, section 10.
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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In Kansas, title by adverse possession cannot be invoked against a governmental subdivision of the state by a private individual.
Author: Robert T. Stephan
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The mere fact that two members of a five-member city council in a city of the third class are married to each other does not violate the open meetings law or any other Kansas statute. Cited herein: K.S.A. 12-3002; 13-2903; 15-101; 15-106; 15-201; 15-209; 75-4317; 75-4317a; K.S.A. 1986 Supp. 75-4318.
Author: Robert T. Stephan
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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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K.S.A. 20-105 provides that to be qualified to hold the office of justice of the supreme court or judge of the court of appeals, a person must have been regularly admitted to practice law in Kansas and have engaged in the active and continuous practice of law for a period of at least ten years prior to the date of appointment as justice or judge. Though the strict definition of "active practice" would require that the legal activities of the person in question be pursued on a full-time basis and constitute his regular business, the general rule that statutory provisions imposing qualifications for office should be construed in favor of those seeking to hold office would serve to soften this requirement. Thus, a potential nominee need not be a full-time trial attorney to be considered as actively engaged in the practice of law, and is not automatically disqualified merely for holding a position which does not require legal expertise. Cited herein: K.S.A. 20-105; 20-3002; K.S.A. 1986 Supp. 22-3707.
