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Archive for Saturday, January 13, 1990

ATTORNEY ASKS COURT TO DENY BYPASS MOTION

January 13, 1990

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Douglas County's motion asking the Kansas Supreme Court to reconsider its decision in the south Lawrence trafficway case sidesteps the main issue, contends the attorney for the plaintiff, Leslie W. Blevins Sr., Lawrence.

"The heart of `Blevins (vs. Hiebert)' is not so much an issue of who makes the rules the state or the county as it is an issue of who sets the level of county debt the voters or the county commission," states Blevins' attorney, Donald Strole, in his response to the county's motion.

Strole filed a 53-page response Friday, asking the court to deny motions for rehearing that were submitted by the county and the League of Kansas Municipalities.

THE COUNTY and the league argued in their motions for rehearing that "dire consequences" would result if the court didn't reconsider its Dec. 8 decision. In that decision, the court found that the county exceeded its home rule powers in issuing $4 million in bonds for the trafficway without holding an election.

In its motion, the county restated its prior arguments that the bond issue was legal under its home rule authority.

The county's argument brought the same response from Strole, that the county followed a particular statute regarding "primary arterial highways" in all respects except the election requirement.

In his response, Strole contends that the Legislature didn't intend for state statutes to be merely a model on which counties could base home rule resolutions.

STROLE CONTENDS that the county had the option of following the statute or passing a charter ordinance, which has the provision for public protest and an election. Either way, the law is intended to give voters their say in such a bond issue, he argues.

The county argued that the court's decision was so broadly written that it calls into question the validity of the county's entire $12.5 million bond issue in 1985 and the $13.5 million bond refunding issue in 1986. In addition, the county said its potential liability could easily exceed $6 million if the bonds lose their tax-exempt status and bond holders bring suit against the county for damages.

The county also contends that its ability to issue and sell bonds in the future would be severely restricted, if not eliminated, for some period of time.

IN HIS MOTION, Strole contends that county officials should have known of the possible "dire consequences" but that they rushed into the bond issue anyway.

Instead of filing in district court for a declaratory judgment, which would have made the law certain before any bonds were issued, the county chose to rely on the non-binding opinion of the attorney general, Strole argues.

In its motion, the county also asks the court to consider the "disastrous" effects its decision will have on hundreds of Kansas counties and cities, which also relied on home rule authority in issuing bonds.

In his response, Strole says that the court's decision was specifically drafted to meet the facts of the case.

"The court's opinion simply does not have the far-reaching effects that the county fears. Each case should and must be decided on its own facts and merits. Granting the county the blanket immunity it requests for itself and all other municipalities would be an incentive for all counties and cities to proceed to issue bonds however they choose, regardless of the consequences," Strole says in his motion.

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