[ DA: County cases never belonged here ]

DA: County cases never belonged here

By Robert Hecht

Special to The Capital-Journal

I was appalled at the article in Section C of the June 22 Topeka Capital-Journal headlined "Hecht move dismays county," which opined that this office had a policy not to prosecute violations of home rule resolutions.

The article states that "Commissioners were informed that some of the county home rule resolutions weren't being prosecuted, and haven't been for years." I do not know the accuracy of that statement, but its truth would not surprise me.

You should be advised that this office does not have a set of the home rule resolutions. Of course, it would be difficult, if not impossible, to prosecute a home rule resolution violation without receipt of the legal framework for such a prosecution.

I am aware of several home rule prosecutions by the prior administration. Each of those complaints are improper in that the complaint was brought in the name of the state of Kansas, which is statutorily not permitted as the law requires such cases to be brought in the name of the county (K.S.A. 19-101d, 2000 Supp.).

This office has no policy concerning the nonenforcement of county home rule resolutions. I have never adopted a policy and have never authorized anyone to express a policy as to what this office would or would not do in regard to the enforcement of home rule resolutions.

I would point out two things. First: the district attorney's office represents the state of Kansas. It does not represent a county. The duty of the district attorney's office is to prosecute violations of state law and to prosecute such civil matters as are instituted by the district attorney in regard to certain limited civil obligations that a district attorney's office may have.

Prosecutions for the violation of a home rule resolution may not be brought in the name of the state of Kansas. The statute provides that "prosecutions for any such violations shall be commenced in the District Court in the name of the county..." [K.S.A. 19-101(d) (2)]

For the purpose of enforcing home rule resolutions and county codes, the Board of County Commissioners may employ or appoint enforcement officers who have the power to sign, issue and execute notices to appear and uniform citations or uniform complaints and notices to appear but have no power to issue warrants or make arrests. The Board of County Commissioners also may employ or appoint attorneys for the purpose of prosecuting actions for the enforcement of county codes and resolutions, and such attorneys shall have the duties, powers and authorities provided by the board as necessary to prosecute actions under the code.

So as to make it clear, this office has no role to play in the enforcement of county home rule resolutions. The enforcement of such resolutions are actions to be brought in the name of the county and may be brought by attorneys employed or appointed by the commission for such purpose, which, I assume, would be the county counselor's office unless the commission designates otherwise.

It is most unfortunate that the commission had been given misleading, inadequate or only partial information concerning the enforcement of home rule resolutions. As I said I have never adopted a policy, expressed a policy or authorized the expression of a policy concerning this office's role in the enforcement of home rule resolutions. The statutes make it clear that we have no such role and that the enforcement of such resolutions is a county function. It appears that the county counselor is at least in the beginning stages of developing a process for the enforcement of home rule resolutions.

I have no understanding why the county counselor's office in the past has not been enforcing home rule resolutions or establishing a process for doing so.

You should be aware that since this administration took office we have filed 884 criminal cases, 663 juvenile offender cases, 283 children in need of care cases, 56 mental health cases and over 5,300 traffic offenses and that in just the last two weeks we have tried more than five jury trials, secured multiple convictions by both jury verdict as well as guilty plea, and have sent two persons to the penitentiary for life imprisonment as well as multiple other sentences involving many years of incarceration. Given the fact that the assistant district attorneys in this office are working beyond any reasonable expectation and that the support staff is overwhelmed with paperwork, it offends me to have an article in the newspaper, the tenor of which is to tarnish the image of this administration by asserting that we are refusing to do something when in truth we a) have not been asked to do it, and b) have no authority to do it, and which is the responsibility of others to do as described by the very statutes that authorize the adoption of home rule resolutions.

Because of the misinformation and inadequate information that has been presented to the commissioners, the commission rightly feels that this office may have been discourteous. I understand your feeling. However, I was not discourteous in failing to send a letter notifying you of a policy of this office because such policy does not exist and I have not expressed any such policy.

I have known Commissioner Ensley for more than 30 years and although we are of different political parties I have always supported him. As an attorney representing the county many years ago, I was involved with Mr. Ensley when he was superintendent of the Shawnee County Parks and responsible for the design and construction of the Lake Shawnee Golf Course. Much of the credit for the county parks system and Lake Shawnee Golf Course which we now have goes to Mr. Ensley. I have known Chairman Miller for more than 20 years and have always recognized him as a very capable and energetic lawyer, dedicated to the best interest of his clients. I have become acquainted with Commissioner Kane only in the last year, but since my taking office it has been obvious that she is very involved in the responsibilities of her office.

I make the point of acquaintanceship with the commissioners as a predicate for the statement that although I may not always be the most sensitive or socially correct person, I would never be so discourteous as to adopt a policy that impacted on the commissioners without first discussing the same with them, explaining the basis and reasoning for the same and seeking their input.

Robert Hecht is Shawnee County district attorney.

Copyright 2001
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