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“Life, Liberty and the Pursuit of Anyone Who Threatens It”
Ken Dunwoody                                  GOD
Henpecked Acres                    One Nation
14850 W. 159th St.
Olathe, Ks. 66062
(913)768-1603
kdunwoody2@aol.com
http://NOlathe.net

 

August 2, 1996

Eilert Law Suit

During his 1995 US Congressional District 3 primary, it was alleged that Mayor Eilert had his Police Chief conduct an illegal FBI criminal background check on opponent Patrick.  US Court dismissed the resulting lawsuit following an “out of court settlement”.  Prior to the settlement, Judge Vratil ordered the files sealed so as not to negatively influence the public at Eilert’s request.  Following the settlement, KC Star filed a lawful KORA request with the City of Overland Park for attorney billing information.  Eilert’s refusal made it’s way to the Kansas Supreme Court and provides the last date on The Act itself.

Cypress Media v. City of Overland Park

 

Cypress Media v. City of Overland Park was a case before Kansas Supreme Court in 2000 concerning the request for release of attorney billing statements.

Important precedents

This case established that exemptions for attorney-client privilege must be defended on a document by document basis, with each justification establishing why that particular document is to be considered confidential attorney communication.

Background

  • Cypress Media, or the Kansas City Star, requested of the City of Overland Park all billing statements from 1996 for attorney services provided to the city by outside firms.
  • The city responded to the requests by giving the star redacted copies of billing information which included the date of the work, the name of the firm, and the amount billed, including attorney fees and expenses. The information that was redacted under the attorney-client privilege exemption was descriptions of the services and descriptions of the legal issues on which the attorney’s had worked. The city claimed the attorney-client privilege material was exempt under Kansas Open Records statute 1998 Supp. 45-221(a), which exempts all things which are exempted under evidence and discovery rules.
  • The Star sued and the trial court, after much debate, ruled in favor of the Star and ordered un-redacted copies of all the documents the Star had requested to be released.
  • The City appealed the decision.

Ruling of the court

The trial court first established that a blanket exception for attorney-client privilege could bot be applied as all communications between attorneys and clients did not relate to legal advice. The court ordered the city to compile a line by line list of the documents in question they wished to remain exempt and justify that exemption for each document separately. The city released a number of documents but established a codified system for exempting a larger portion of the documents, again relying on the attorney-client privilege exemption found in the Kansas Open Records Act. The court determined that it had not met the court’s requirement of a line by line justification for exemption and ordered the release of all of the documents. The Supreme Court affirmed the decision of the trial court and ordered the documents released. The Supreme Court first rejected the City’s claim of an expansive attorney-client privilege exemption which includes all communication between attorneys and clients. It however, also rejected the Star’s contention that only communication concerning legal advice constituted an exception under attorney-client privilege. Instead, the court affirmed the decision of the trial court to order a line by line justification of the exemptions, bearing in mind that material that is exempt under the attorney-client privilege is not only material relating to legal advice but any material that would reveal reasons for consulting the lawyer, or courtroom strategies. The court also felt that the same standard of analysis should be applied on a case by case basis to determine if the materials fall under the exemption for attorney work product, as the city argues they should. Finally, the court reiterated the opinion of the trial court that the exemptions mentioned required specific line by line justification for exemption. A mere mention of the statute used to exempt the materials is identical to the broad statutory interpretation the city urged, which would render all attorney-client communication exempt. The court thus affirmed all the decisions of the lower court and declared that it was well within its jurisdiction to order the documents released.

 

10/21/2010

Mr. Dunwoody:

I must advise you that your request is more in the nature of a request for information or an interrogatory than it is a Kansas Open Records Act (“KORA”) request. The KORA affords public access to existing documents and does not require a public entity to create a new document in responding to a KORA request. Nevertheless, as an accommodation to you in this instance, we are answering your questions but without thereby acquiescing in an interpretation of the KORA that would require the City to do so in the future. There will be no charge to you for the costs incurred by the City in constructing this response. However, we do not thereby acquiesce in an interpretation of the KORA that would require this waiver of fees with respect to future requests.

The insurance policy of the City that responded to the Kerry Patrick claim and lawsuit was the law enforcement and police professional liability policy, an occurrence policy, issued through the First Mercury Syndicate, Inc., of the Illinois Insurance Exchange (“insurance company”) for the policy period from March 15, 1994, to March 15, 1995. The premium paid for the policy period from March 15, 1994, to March 15, 1995, was $128,588. The premium paid for the policy period from March 15, 1995, to March 15, 1996, was $128,438. The premium paid for the policy period from March 15, 1996, to March 15, 1997, was $116,322. In late 1996, the general managing agency for the insurance company indicated that law enforcement and police professional liability coverage was no longer being offered through the insurance company. Hence, the City moved to the St. Paul Fire and Marine for its law enforcement and police professional liability coverage and all other coverages for the policy period from March 15, 1997, to March 15, 1998. The premium paid for the law enforcement and police professional liability policy was $96,080 for the policy period from March 15, 1997, to March 15, 1998.

The cost to the City of defending the City, the Mayor and the Chief of Police in the Kerry Patrick matter was the $100,000 deductible paid by the City. This payment consisted of payment by the City directly to the Spencer Fane law firm of $10,274.08 for its initial defense of the City and the Mayor, and to the Bryan Cave law firm of $8,799.30 for its initial defense of the Chief of Police. These payments were made in 1995, prior to the assumption of the payment obligation by the City’s insurance company. The City was given a credit against its deductible for the payments it had made to the law firms. The City paid to the insurance company the balance due on its deductible of $80,926.62 on December 19, 1996, all of which amount was attributable to additional defense costs.

With respect to your request that the City “confirm that the lawsuit was settled out of court based on the recommendation of the city’s insurance carrier,” the City has found no record that provides such a confirmation. With respect to your request “for any settlement payments paid by the City of Overland Park outside of the insurance settlements to Mr. Patrick and/or his attorney Mr. Dennis Egan and/or court costs,” the City has found no record of such payments. Kerry Patrick and his attorneys voluntarily dismissed, with prejudice, all claims against the City and the Mayor. No funds, public or private, were paid to Mr. Patrick or to his attorneys in return for the dismissal. All claims by Kerry Patrick against the Chief of Police were settled and dismissed and the Chief of Police denies any liability. No public funds were paid to Mr. Patrick or to his attorneys in return for the settlement.

ROBERT J. WATSONCITY ATTORNEYLAW DEPARTMENT

CITY OF OVERLAND PARK

8500 SANTA FE DRIVE

OVERLAND PARK, KS 66212

913-895-6083 (w) | 913-484-0280 (m) | 913-895-5095 (f)

bob.watson@opkansas.org | www.opkansas.org

During the initial 2001 Johnson County Home Rule Charter Commission and during the 10 year review 2011 Johnson County Home Rule Charter Commission, a considerable amount of time was spent debating whether the County Sheriff should be elected or appointed.  All the while:

19-801a.Sheriff; election, term, bond. Except in those counties operating under the provisions of any consolidated law enforcement act, beginning with the general election in 1976, a sheriff shall be elected in each county, for four (4) years. Such sheriff shall, before entering upon the duties of the office, execute to the state of Kansas a good and sufficient corporate surety bond, issued by a company authorized to do business in Kansas in an amount fixed by the board of county commissioners of not less than ten thousand dollars ($10,000). Such bond, when approved, shall be filed in the office of the county clerk.

So where did this myth come from?  Where did either Charter Commission come to believe they had authority to ignore State Statute?  Peeked my curiosity, and this is what we found:

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19-301.County clerk; election, term, bond. Beginning with the general election in 1976, a county clerk shall be elected in each county, for a term of four (4) years. Such county clerk shall, before entering upon the duties of the office, execute and file with the county treasurer a good and sufficient corporate surety bond, conditioned on the faithful performance of the duties of the office. Such bond shall be issued by a company authorized to do business in Kansas, in an amount to be fixed by the county treasurer of not less than ten thousand dollars ($10,000).

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Home Rule Charter County Clerk: The position of County Clerk shall be appointed, not elected, and the functions and operations of the office of County Clerk shall be performed under the administrative authority of the County Manager. The statutory duties of the County Clerk shall be performed by or, as necessary, consolidated under the authority of and as delegated and assigned by the County Manager. Compliance with this provision shall occur when the County Clerk elected in November 2000 leaves office.

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19-1201.Register of deeds; election, term, bond. Beginning with the general election in 1976, a register of deeds shall be elected in each county for a term of four (4) years. Such register of deeds shall, before entering upon the duties of the office, execute to the state of Kansas and file with the county clerk, a good and sufficient corporate surety bond issued by a company authorized to do business in this state in an amount approved by the county clerk of not less than ten thousand dollars ($10,000). Such bond shall be conditioned on the faithful performance of the duties of the office and that such register of deeds will deliver to the successor in such office all property belonging to such office.

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Home Rule Charter  Register of Deeds: The position of the Register of Deeds shall be appointed, not elected, and the functions and operations of the office of the Register of Deeds shall be performed under the administrative authority of the County Manager. The statutory duties of the Register of Deeds shall be performed by the County Clerk, or, as necessary, consolidated under the authority of and as delegated and assigned by the County Manager. Compliance with this provision shall occur when the Register of Deeds elected in November 2000 leaves office.

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19-501.County treasurer; election, term, bond. Each county treasurer elected at the general election in 1976 shall serve until the second Tuesday in October of 1981 and until a successor is elected and qualified. At the general election in 1980, and every four (4) years thereafter, a county treasurer shall be elected in each county for a term of four (4) years, commencing on the second Tuesday in October following the election, and until a successor is elected and qualified.  Such county treasurer shall, before entering upon the duties, of the office execute to the state of Kansas a corporate surety bond issued by a company authorized to do business in this state and approved by the board of county commissioners in an amount of not less than twenty-five thousand dollars ($25,000). Such bond, with the approval of the board endorsed thereon by the clerk, shall be filed in the office of the county clerk. In the event the board of commissioners shall not be in session in time for any county treasurer to present such bond for their approval as above specified, or such county treasurer shall be unable, for any reason, to present such bond at any regular meeting of the board after due notice of such county treasurer’s election, such county treasurer may present such bond to the chairman or clerk of the board for approval, and the approval endorsed thereon shall have the same effect as if done by the board of county commissioners. In the event the amount of the bond is approved by only the chairman or the clerk of the board, it shall not be less than twice the amount of all moneys directed by the board to be levied in the county during the previous year.

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Home Rule Charter  County Treasurer: The position of the County Treasurer shall be appointed, not elected, and the functions and operations of the office of the County Treasurer shall be performed under the administrative authority of the County Manager. The statutory duties of the County Treasurer shall be performed by or, as necessary, consolidated under the authority of and as delegated and assigned by the County Manager. Compliance with this provision shall occur when the County Treasurer elected in November 2000 leaves office.

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That brings us back to the current lawsuit regarding The County Board of County Commissioners violating The Home Rule Charter and their argument that Statute trumps Charter.  Well Commissioners a reasonable person would conclude quite the opposite.  Charter trumps Statute.

Commissioners, if your legal eagles are successful in proving your position, the judge will have no other choice than remand The Home Rule Charter.  This should make for a busy Monday.  See you in court Tuesday but for now, the choice is yours.

“Life, Liberty and the Pursuit of Anyone Who Threatens It”
Ken Dunwoody                                         GOD
Henpecked Acres                                     One Nation
14850 W. 159th St. Olathe, Ks. 66062
(913)768-1603
kdunwoody2@aol.com

Case Number: 14CV00945

Following the statutory 20 days and 10 additional day extension, Johnson County has finally responded to our law suit with these two documents: p-motiontodismiss and p-memoranduminsupportofmotiontodismiss

I find it interesting that the county’s main argument is that the Plaintiffs do not “have standing” in defense of The Constitution.

Next-  April 1, 2014 at 11:00 a.m. Division 3, Hearing on Plaintiffs’ request for a temporary restraining order.

We will find out if The Home Rule Charter “has standing”.

“Life, Liberty and the Pursuit of Anyone Who Threatens It”
Ken Dunwoody                                                  GOD
Henpecked Acres                                One Nation
14850 W. 159th St.
Olathe, Ks. 66062
(913)768-1603
kdunwoody2@aol.com
http://NOlathe.net

?ycnerapsnarT

SUNSHINE Award 2014

“Life, Liberty and the Pursuit of Anyone Who Threatens It”
Ken Dunwoody                                         GOD
Henpecked Acres                                     
One Nation
14850 W. 159th St.
Olathe, Ks. 66062
(913)768-1603
kdunwoody2@aol.com
http://NOlathe.net
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