Attorney General Opinion No. 1983-106 PDF Download
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Author: Robert T. Stephan
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Pursuant to the provisions of K.S.A. 2-1319 and 2-1322, a board of county commissioners must prescribe a single "price" to be charged to all landowners who desire to purchase chemicals acquired by the county for the control of noxious weeds. The price fixed by the board under the aforesaid statutes must be applied in all circumstances, and the board may not require certain landowners to obtain their own chemicals, or require said landowners to pay a price other than that which is charged to all other landowners under the aforesaid statutes. Cited herein: K.S.A. 2-1319, 2-1322, 19-101a (as amended by Section 1 of 1983 Senate Bill No. 302).
Author: Robert T. Stephan
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Pursuant to the provisions of K.S.A. 2-1319 and 2-1322, a board of county commissioners must prescribe a single "price" to be charged to all landowners who desire to purchase chemicals acquired by the county for the control of noxious weeds. The price fixed by the board under the aforesaid statutes must be applied in all circumstances, and the board may not require certain landowners to obtain their own chemicals, or require said landowners to pay a price other than that which is charged to all other landowners under the aforesaid statutes. Cited herein: K.S.A. 2-1319, 2-1322, 19-101a (as amended by Section 1 of 1983 Senate Bill No. 302).
Author: Robert T. Stephan
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As amended by chapter 282, section 5, the provisions of chapter 187, section 11 of the 1984 Session Laws prohibit the selling, giving or receiving of lists of names and addresses derived from public records, for the purpose of selling or offering for sale any property or service to the persons listed therein, subject to three exceptions. Section 6 of chapter 187, as amended by section 3 of chapter 282 of the 1984 Session Laws, further requires that any person who obtains a list of names and addresses certify that: (1) he or she will not use the information for the purpose of selling or offering for sale any property or services, and (2) will not give, sell or otherwise make available the list to another person so that the latter may sell or offer for sale any property or service. Accordingly, a person may not make commercial use of information derived from such lists, either directly or through the sale of the lists themselves. Cited herein: K.S.A. 1983 Supp. 21-3913; 45-201 (both repealed, L. 1984, ch. 187); 74-2012, as amended by L. 1984, ch. 282, section l; L. 1983, ch. 171, section 11, L. 1984, ch. 187, sections 6, 11; L. 1984, ch. 282, sections 3, 5.
Author: Robert T. Stephan
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The Kansas Open Meetings Act is uniformly applicable to all cities and may not be circumvented by a charter ordinance. However, the quorum requirements of K.S.A. 13-1810 are provisions of an enactment of the legislature which is not uniformly applicable and may be changed by charter ordinance. Such charter ordinance will be subject to the "protest" style election authorized by Article 12, Section 5(c)(3) of the Kansas Constitution. "Majority," as the term is used in K.S.A. 13-1810, means the number one greater than half the number of members of the governing body and may not be changed by ordinary city ordinance. Cited herein: K.S.A. 12-1001, 12-1017, 12-1020, K.S.A. 1981 Supp. 12-10a01, 12-10a02, K.S.A. 13-1410, 13-1810, 14-111, 14-1308, 15-106, 15-1409, 75-4317, 75-4317a, K.S.A. 1981 Supp. 75-4318, K.S.A. 77-201 S̲e̲c̲o̲n̲d̲, Kan. Const. Art. 12, section 5.
Author: Robert T. Stephan
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Section 4(d) of 1983 House Bill No. 2327 (L. 1983, ch. 171), the new Kansas Open Records Act, provides that each request for access shall be acted upon as soon as possible, but not later than three business days following receipt of the request. Only if the request cannot be met within this time must the custodian of the records provide an explanation of the cause for further delay. In addition, the phrases "provide access to" and "permit inspection of" are used interchangeably throughout the bill, and may accordingly be treated as synonymous for purposes of interpretation. Both phrases concern the right of the public to examine public records, and so are different than the right to make copies. Cited herein: L. 1983, Ch. 171.
Author: Robert T. Stephan
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Criminal pretrial proceedings must be conducted in the county of venue unless the governing statute specifically permits the proceeding to be conducted in another county. A pretrial proceeding conducted in a county other than the county of venue, without specific statutory authorization therefor, unless waived, is void for lack of jurisdiction. Cited herein: K.S.A. 22-2901, K.S.A. 22-2902, Kan. Const., Bill of Rights section 10.
Author: Robert T. Stephan
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An applicant for appointment by the secretary of state as a notary public must include in the application an oath of office, and the failure to take the oath of office may constitute grounds for revocation of a notary's appointment pursuant to K.S.A. 1982 Supp. 53-118. However, whether an oath has been legally administered is a question of fact. Prior to revoking the appointment of a notary public, the secretary of state must give reasonable notice thereof and provide an opportunity for the notary to respond to the charges being relied upon as grounds for revocation at a hearing held for such purpose. Further, revocation of a notary's appointment pursuant to K.S.A. 1982 Supp. 53-118 operates prospectively, and the secretary of state has no authority to revoke a notary's appointment a̲b̲ i̲n̲i̲t̲i̲o̲. Even though there may have been a defect in a person's appointment as a notary public, or such person failed to conform to some condition precedent to assuming the office of notary public, such person is nonetheless a d̲e̲ f̲a̲c̲t̲o̲ officer where such person was issued a certificate of appointment as a notary, such person held himself or herself out to the public as being a duly appointed notary and, in availing themselves of the notary's services, the public, without inquiry, clearly has presumed such person to be a validly appointed officer. As a consequence, the acts of such person as a d̲e̲ f̲a̲c̲t̲o̲ officer are as valid and effectual, where they concern the public or the rights of third parties, as though such person was an officer d̲e̲ j̲u̲r̲e̲, and such acts are not subject to collateral attack. Cited herein: K.S.A. 1982 Supp. 53-101, 53-102, 53-104, 53-105, 53-105a, 53-116, 53-117, 53-118, K.S.A. 54-102, 54-104, 54-106.
Author: Robert T. Stephan
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For purposes of civil proceedings under the Code for Care of Children, the legislature defined types of behavior which would constitute sexual abuse by reference to sex offenses in the criminal code, however, it did not thereby intend to adopt a criminal definition of sexual abuse. Thus, while certain acts described as sex offenses in the criminal statutes may not be punishable crimes if committed with a child age 16 years or older; those same acts may constitute abuse of that child under the definition of that term in the Code for Care of Children. Cited herein: K.S.A. 21-3501, 21-3503, 21-3504 as amended by L. 1983, ch. 109; 21-3509, 21-3510, 21-3511, 21-3516, K.S.A. 1982 Supp. 38-1502 as amended by L. 1983, ch. 140, 42 U.S.C. sections 5102, 5104, 45 C.F.R. section 1340.2, 1340.14, 48 Fed. Reg. 3698 (January 26, 1983).
Author: Robert T. Stephan
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The filing deadline for all city elections (in the absence of a charter ordinance providing otherwise) is 12:00 o'clock noon of the Tuesday preceding by 10 weeks the first Tuesday in April. Said deadline is mandatory, and the only recourse for a candidate, who was prevented from filing for a city office because of the failure of the city clerk to keep his or her office open until 12:00 o'clock noon on the prescribed date, is to seek relief from a court of law. Cited herein: K.S.A. 25-2109, as amended by L. 1982, ch. 157, section 6.
Author: Robert T. Stephan
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County attorneys must maintain an office at the seat of justice, unless otherwise provided by law or the board of county commissioners. Cited herein: K.S.A. 19-2601.
Author: Robert T. Stephan
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K.S.A. 1982 Supp. 79-201k, which exempts aircraft used actually, regularly and exclusively in business or industry from property or ad valorem taxes, is not unconstitutional as a matter of law on the ground that the law lacks a rational basis. Cited herein: K.S.A. 1982 Supp. 79-201k, Kan. Const., Bill of Rights section 1, U.S. Const., Amend. XIV.
