Weight of attorney general’s opinion on open carry debated

10/07/2012 12:03 PM

10/07/2012 12:03 PM

The wording of the law seems clear.

“Nothing in this section shall prohibit a city or county from regulating the manner of openly carrying a loaded firearm” on public property.

Tell that to the lawyers.

From the Kansas Attorney General’s Office: “A city may not completely prohibit the open carry of a loaded firearm on one’s person.”

From the Kansas League of Municipalities: “Logically, if the city can regulate, it can prohibit. The attorney general’s reasoning is erroneous.”

The attorney general’s opinion that was released Dec. 29 prompted city councils in Wichita and Overland Park to rewrite their firearms ordinances, and both cities now allow residents to openly carry firearms on public property.

But is the opinion legally binding? Could Wichita city officials thumb their noses at the opinion and keep their old law? The answer may depend on which lawyer you ask.

Many see an attorney general’s opinion as just one lawyer’s interpretation of a law that carries no legal weight in a courtroom. Others see an opinion as a carefully crafted argument written by seasoned lawyers who have thoroughly researched an issue and answered a question of vital public interest.

“It’s the law where there is no law,” said former Attorney General Bob Stephan, who said an AG’s opinion carries significant weight in Kansas courtrooms. “More often than not, it’s going to have the force and effect of the law.”

Former Attorney General Vern Miller was less sure.

“An attorney general’s opinion has no authority as far as I know; it’s merely an opinion,” he said. “It does add weight to a judge’s decision, but a judge is the one who decides.”

Since 1974, the Kansas Attorney General’s Office has issued more than 6,000 opinions, most of which involve such obscure topics as sewer districts, library tax levies, no-fund warrants and the Tax Increment Finance Act. But there have been times when the opinions have shifted public policy in the state.

Stephan, who issued more than 3,100 opinions during his tenure from 1979 to 1995, said his opinions on abortions and Indian tribes not only altered state policy but touched off public protests from groups that disagreed with him.

He said the state’s dry forces protested in the early 1970s when he issued an opinion that said national air carriers could serve liquor to passengers flying over Kansas. The airlines stopped the practice in 1972 after Miller, who was the attorney general then, raided an Amtrak train in Newton and confiscated its liquor under a state law that prohibited the serving of alcohol on a public conveyance. Amtrak challenged the raid in federal court and lost, and the airlines voluntarily stopped serving liquor while flying over Kansas.

The open carry ruling

Chief Deputy Wichita City Attorney Sharon Dickgrafe said she realizes that attorney general’s opinions aren’t binding in court, but she also said judges can find them to be persuasive. She said the open-carry ruling released in December was reasonable and well written.

“We felt that this opinion could be used by a court to conclude that our ordinances were void or invalid,” she said.

The city is expected to ask the 2013 Kansas Legislature to rewrite the law to make it clear that cities can prohibit carrying unconcealed firearms in public.

Kimberly Winn, deputy director of the League of Municipalities, said her office took the opposite position on the open-carry issue.

“They completely missed the ball on this one,” she said of the attorney general’s opinion.

Winn downplayed the significance of the opinion, pointing to a 2006 Kansas Supreme Court Ruling that says in part, “We have long held that the construction placed upon a statute by the opinion of an attorney general is neither conclusive nor binding on the court.”

Winn said her organization advises cities to rely on their own attorneys when resolving legal issues instead of asking for an attorney general’s opinion.

“There’s really no legal value to them,” she said. “If you can’t rely on them in court, what’s the point? We encourage people to use their own attorneys.”

Kansas law restricts who can ask for an attorney general’s opinion or seek the advice of the office.

“The attorney general shall consult with and advise county attorneys, when requested by them, in all matters pertaining to their official duties,” the law says.

It says the attorney general shall issue a written opinion to all questions of law submitted by the legislature, the governor, the secretary of state, the state treasurer, the state board of education and the commissioner of insurance.

Wichita lawyer Steve Joseph said the only ones legally bound by those opinions are state officials, state agencies and their employees.

But he said county attorneys and county counselors typically follow the opinions.

“From the point of view of prosecutors, it’s pretty much seen as the Bible,” he said. “But it’s not the law. They’re not bound by it at all

“You’re always safe doing what the attorney general says,” he said. “But it’s just like another brief. It’s just another lawyer’s opinion.”

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