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Ruling has some questioning clout of AG opinions

Published on -10/8/2012, 2:26 PM

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WICHITA, Kan. (AP) -- An opinion by Attorney General Derek Schmidt late last year prompted two Kansas communities to change their gun laws, allowing people to openly carry loaded firearms on public property.

The Wichita Eagle (http://bit.ly/Pj7mwi) reported that it also raised questions about how much weight such an opinion carries.

After Schmidt's office declared in December that a city "may not completely prohibit the open carry of a loaded firearm on one's person," city councils in Wichita and Overland Park rewrote their ordinances to allow residents to openly carry their guns.

Wichita leaders are expected to ask the Kansas Legislature to rewrite state law next year to make it clear that cities can prohibit carrying unconcealed guns in public.

At issue is the wording: "Nothing in this section shall prohibit a city or county from regulating the manner of openly carrying a loaded firearm" on public property. While Schmidt said that means cities can't prohibit open carry, the Kansas League of Municipalities argues that it makes sense that if a city can regulate open carry, it also can prohibit it.

"The attorney general's reasoning is erroneous," the league said.

The issue highlights the lack of consensus among attorneys about whether opinions from the AG's office are legally binding. Many see such an opinion as no more than one lawyer's interpretation that carries no legal weight in a courtroom. Others disagree.

"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."

Vern Miller, who served two terms as attorney general starting in 1970, said the office's opinions add weight to a judge's decision, but have no real legal authority.

Sharon Dickgrafe, Wichita's chief deputy city attorney, said although attorney general's opinions aren't binding in court, judges can find them to be persuasive. She said Schmidt's 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.

Kimberly Winn, deputy director of the League of Municipalities, wasn't so impressed.

"They completely missed the ball on this one," she said.

Winn said the league advises cities to rely on their own attorneys when resolving legal issues, rather than passing them on to the AG's office for an opinion.

"There's really no legal value to them," she said. "If you can't rely on them in court, what's the point?"

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