Attorney General Opinion No. 1988-162 PDF Download
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Author: Robert T. Stephan
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K.S.A. 1987 Supp. 21-3525, known as the rape shield law, applies where the crime of rape, K.S.A. 1987 Supp. 21-3502, has occurred. Due to the sexual neutrality of the language used in the rape statute, the definition of "sexual intercourse" found in K.S.A. 1987 Supp. 21-3501(1), and due to the rule that criminal statutes are to be strictly construed, it is possible for a male to be the victim of rape. K.S.A. 1987 Supp. 21-3525 also applies when the crime of aggravated criminal sodomy, K.S.A. 1987 Supp. 21-3506, has occurred. Therefore, the rape shield law does indeed apply to forceable rapes committed against male victims, as well as applying to cases of aggravated criminal sodomy when the victim is a male. Cited herein: K.S.A. 1987 Supp. 21-3501; 21-3502; 21-3506; 21-3525.
Author: Robert T. Stephan
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K.S.A. 1987 Supp. 21-3525, known as the rape shield law, applies where the crime of rape, K.S.A. 1987 Supp. 21-3502, has occurred. Due to the sexual neutrality of the language used in the rape statute, the definition of "sexual intercourse" found in K.S.A. 1987 Supp. 21-3501(1), and due to the rule that criminal statutes are to be strictly construed, it is possible for a male to be the victim of rape. K.S.A. 1987 Supp. 21-3525 also applies when the crime of aggravated criminal sodomy, K.S.A. 1987 Supp. 21-3506, has occurred. Therefore, the rape shield law does indeed apply to forceable rapes committed against male victims, as well as applying to cases of aggravated criminal sodomy when the victim is a male. Cited herein: K.S.A. 1987 Supp. 21-3501; 21-3502; 21-3506; 21-3525.
Author: Robert T. Stephan
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K.S.A. 75-4319(b)(2) authorizes public bodies subject to the Kansas Open Meetings Act (KOMA) to recess into an executive session for the purpose of "consultation with an attorney for the body or agency which would be deemed privileged in the attorney-client relationship ..." The term "consultation" as used in the KOMA necessarily implies the presence of an attorney. Even though a letter from an attorney to his client containing advice is a privileged communication, we must conclude that members of a public body cannot recess into an executive session to review and discuss among themselves a letter from their attorney. Therefore, it is our opinion that the "consultation with an attorney" exception to the open meetings law cannot be invoked unless the attorney for the body is present. Cited herein: K.S.A. 60-426; 75-4317; K.S.A. 1985 Supp. 75-4318(a); K.S.A. 75-4319.
Author: Robert T. Stephan
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The Shawnee county board of county commissioners may fund the Shawnee county fair association pursuant to K.S.A. 1987 Supp. 2-162 or K.S.A. 79-1946. The correct procedure is dependent upon the statutory authority employed. K.S.A. 1987 Supp. 2-162 procedures are not required unless a tax levy is made pursuant to that authority. Cited herein: Kan. Const., Art. 11, sections 1 and 5; K.S.A. 2-127, 2-128, 2-129; K.S.A. 2-130; K.S.A. 1987 Supp. 2-158; 2-162; K.S.A. 19-212; 79-1946 and 79-2934.
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An appointed non-lawyer member may not continue membership on the judicial nominating committee once that member has been granted a temporary permit to practice law. Cited herein: K.S.A. 20-119; 20-120, 20-123; 20-124; 20-125; 20-127; Supreme Court Rule 705.
Author: Robert T. Stephan
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The letter of notice sent by the Clerk of the Supreme Court to attorneys who fail to register and pay the fee for renewal of their license by July 1 each year, and the return receipt are public records as that term is defined by the Kansas open records act (KORA), K.S.A. 45-215 et seq. These documents are subject to mandatory disclosure as the letter constitutes correspondence intended to give notice of an action relating to a regulatory and enforcement responsibility of the Clerk's office. K.S.A. 1987 Supp. 45-221(a)(14). The list of attorneys certified by the clerk to the Supreme Court who have failed to register and pay the fee, and an order of the Supreme Court suspending an attorney from the practice of law for that reason are also public records which must be disclosed to the public upon request. Cited herein: K.S.A. 45-215; 45-216; 45-217; K.S.A. 1987 Supp. 45-221.
Author: Robert T. Stephan
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The issue of whether there has been a violation of the Voting Rights Act or the Fourteenth and Fifteenth Amendments to the United States Constitution in utilizing at large or multi-member electoral systems is a question of fact. Relevant factors a court will consider in making such a factual determination are set forth in this opinion. Cited herein: 42 U.S.C.A. section 1973a.
Author: Robert T. Stephan
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Claims against a county, based upon federal civil rights law, are not subject to the damage limitation provisions set forth in the Kansas tort claims act. K.S.A. 1987 Supp. 75-6105 sets a damage limitation and K.S.A. 1987 Supp. 75-6111 creates an exception to that limitation when an insurance policy is purchased that has policy limits in excess of the limitation. If such a policy is purchased, the damage limitation becomes the limitation of the policy. If a policy does not cover liability for certain claims, the damage limitation contained in K.S.A. 1987 Supp. 75-6105 remains applicable. Cited herein: K.S.A. 1987 Supp. 75-6105; 75-6111.
Author: Robert T. Stephan
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Courts presume the constitutionality of a statute and resolve all doubts in favor of its validity. This presumption, when combined with the lack of prohibitory language in K.S.A. 25-3802, leads us to conclude that, while state law does not require an officer of a county central committee to be a member of a precinct committee, a political party may require such membership. Cited herein: K.S.A. 25-3802.
Author: Robert T. Stephan
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1988 House Bill No. 2704, places restraints on the "property rights" of individuals in order to promote and protect the well established public welfare interest of insuring that human remains are treated properly. In our opinion it clearly represents a valid exercise of the state's inherent police power. Therefore, any private individual claiming ownership of human skeletal remains would not be entitled to compensation simply because the state regulation requires relinquishment of the remains. However, if a claimant convinced the court that 1988 House Bill No. 2704 operated as an eminent domain taking of an identifiable property interest, rather than a valid exercise of police power, the court could require compensation for any legally held property interest taken by the regulation. Valuation of such a property interest would require consideration of factors set forth in K.S.A. 26-513(d) and evidence of (1) the fair market value and condition of the portion of property at the time of the taking, and (2) the loss of that value to the legal owner. Cited herein: K.S.A. 7-103; 12-707; 12-1401; 13-14c01; 14-1007; 15-1001; 15-1014; 17-1302; 19-1015; 19-2901; 19-3106; 21-3512; 21-4112; 21-4115; 21-4214; 22-3902; 26-513; 41-101; 58-2501; 65-901; 65-1701; 65-4127; 73-301; and 80-916.
Author: Robert T. Stephan
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Pursuant to K.S.A. 1987 Supp. 19-101a(20), counties may not exempt or change the provisions contained in K.S.A. 1987 Supp. 19-211. Pertinent language of Attorney General Opinion No. 87-164 is amended so as to be consistent with this rule. Cited herein: K.S.A. 1987 Supp. 19-101a(20); 19-211.
