Attorney General Opinion No. 1982-182 PDF Download
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Author: Robert T. Stephan
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As amended by Laws of 1982, Chapter 144, K.S.A. 1981 Supp. 8-1567(h) provides that a court shall, prior to sentencing a person who has been convicted of a violation of the statute or who has entered a plea of n̲o̲l̲o̲ c̲o̲n̲t̲e̲n̲d̲e̲r̲e̲, request and receive from the department of revenue, division of vehicles, a record of all prior convictions of that person for violations of any of the motor-vehicle laws of Kansas. Additionally, the sentencing provisions found in subsections (c), (d), (e) and (i) of the amended statute make reference to convictions of a violation of only the statute or an ordinance which prohibits the same acts. In view of this specific language, convictions under a statute of another state are excluded from consideration at time of sentencing. While the Legislature has included reference to the laws of other states in some Kansas statutes (s̲e̲e̲, e̲.̲g̲.̲ K.S.A. 1981 Supp. 8-285, as amended by L. 1982, ch. 144), it did not choose to do so in the statute governing driving under the influence of intoxicating liquor or drugs. Cited herein: K.S.A. 1981 Supp. 8-285 (as amended by L. 1982, ch. 144), K.S.A. 8-286, 8-287, K.S.A. 1981 Supp. 8-1567 (as amended by L. 1982, ch. 144).
Author: Robert T. Stephan
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As amended by Laws of 1982, Chapter 144, K.S.A. 1981 Supp. 8-1567(h) provides that a court shall, prior to sentencing a person who has been convicted of a violation of the statute or who has entered a plea of n̲o̲l̲o̲ c̲o̲n̲t̲e̲n̲d̲e̲r̲e̲, request and receive from the department of revenue, division of vehicles, a record of all prior convictions of that person for violations of any of the motor-vehicle laws of Kansas. Additionally, the sentencing provisions found in subsections (c), (d), (e) and (i) of the amended statute make reference to convictions of a violation of only the statute or an ordinance which prohibits the same acts. In view of this specific language, convictions under a statute of another state are excluded from consideration at time of sentencing. While the Legislature has included reference to the laws of other states in some Kansas statutes (s̲e̲e̲, e̲.̲g̲.̲ K.S.A. 1981 Supp. 8-285, as amended by L. 1982, ch. 144), it did not choose to do so in the statute governing driving under the influence of intoxicating liquor or drugs. Cited herein: K.S.A. 1981 Supp. 8-285 (as amended by L. 1982, ch. 144), K.S.A. 8-286, 8-287, K.S.A. 1981 Supp. 8-1567 (as amended by L. 1982, ch. 144).
Author: Robert T. Stephan
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State chartered banking institutions may operate branch facilities only within the limitations of K.S.A. 1986 Supp. 9-1111, as amended. These limitations are not affected by an interpretation of federal law which allows federally chartered banks to branch in the same manner as state chartered savings associations. Cited herein: K.S.A. 1986 Supp. 9-1111, as amended by L. 1987, ch. 53, sec. 1; 12 U.S.C. section 36 (1982).
Author: Robert T. Stephan
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The State Board of Pharmacy is not authorized, under the provisions of K.S.A. 65-1648 (as amended by L. 1982, ch. 262, section 5) or any other statute, to adopt a regulation which provides, expressly or by implication, that the issuance of standing orders is outside the authorized course of professional practice of a physician. However, the State Board of Healing Arts has jurisdiction to investigate complaints against practitioners who allegedly issue standing orders in contravention of standards of competent medical practice. A public health department or private not-for-profit family planning clinic may not distribute any drug to a patient where such distribution would violate any provision of the Uniform Controlled Substances Act, K.S.A. 65-4101 e̲t̲ s̲e̲q̲. A designated registered nurse, in charge of distributing drugs at a public health department or private not-for-profit family planning clinic (when a pharmacist is not on the premises), may supply the entire quantity of drugs necessary for treatment of a patient, if completion of the course of treatment ordered by the supervising practitioner entails supplying such a quantity of drugs. Cited herein: K.S.A. 65-1626 (as amended by L. 1982, ch. 182, section 138), 65-1648 (as amended by L. 1982, ch. 262, section 5), 65-4101, 65-4123 (as amended by L. 1982, ch. 269, section 7).
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 manager and city treasurer in a city of the second class having a commission-manager form of government. Cited herein: K.S.A. 12-1001, 12-1011, 12-1014, 12-1024.
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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Neither K.S.A. 12-1222 nor the common law doctrine of incompatibility of offices precludes a person from simultaneously being the county register of deeds and a member of a city's library board. Cited herein: K.S.A. 12-1218 and 12-1222.
Author: Robert T. Stephan
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During the 1982 session of the Legislature, both Senate Bill Nos. 559 and 595 were enacted into law. As each of the two measures contains a section amending K.S.A. 16a-2-401, they should, if possible, be considered together in order to give effect to both. In that they alter different subsections of the statute, the two measures are not in conflict. Even though the changes made by S.B. No. 595 are not reflected in S.B. No. 559, K.S.A. 16a-2-401 may be read to include the changes made by both acts. Cited herein: K.S.A. 16a-2-201, 16a-2-401, 1982 Senate Bill No. 559, 1982 Senate Bill No. 595.
Author: Robert T. Stephan
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A contract which determines the custody of a child is void as against public policy. Cited herein: K.S.A. 23-128, 23-129, 23-130.
Author: Robert T. Stephan
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A register of deeds is required to file of record a written instrument whereby real estate may be affected. Such filing can properly be refused only if the instrument contains apparent errors, or is not proved or acknowledged, and certified in the manner prescribed by law, or the register of deeds has been directed by a court not to file the instrument. Of course, a register of deeds also may refuse to file instruments that clearly do not affect real estate, or where the law requires some act, such as payment of the mortgage registration fee, before the instrument may be received and filed of record. Cited herein: K.S.A. 58-2221.
