Opinion
No. 108,527.
2013-08-2
CITY OF LAWRENCE, Appellee, v. Robert S. GILMORE, Appellant.
Appeal from Douglas District Court; Paula B. Martin, Judge.
Shelley Hickman Clark, of University of Kansas School of Law, of Lawrence, for appellant. Elizabeth M. Hafoka, city attorney, for appellee.
Before GREEN, P.J., PIERRON, J., and Bukaty, S.J.
MEMORANDUM OPINION
PER CURIAM.
Robert S. Gilmore challenges the district court's finding that Lawrence, Kansas, municipal ordinance 16–803(4) is constitutional. He argues the ordinance is unconstitutional as being void for vagueness. We affirm.
The Lawrence Police Department arrested Gilmore three times for violation of Lawrence, Kansas, Municipal Ordinance 16–803(4), which states in pertinent part:
“It shall be unlawful to ...
....
(4) Continue to obstruct traffic on any street, sidewalk, or other right-of-way of this City after having been ordered by a police officer to end such obstruction.
“For the purposes of this section, ‘obstruct traffic’ means to walk, stand, sit, lie, or place an object in a manner as to: block lawful passage by another person or vehicle, or to require another person or driver to take evasive action to avoid physical contact, or to block the entrance of any private or public building or establishment from any public street or sidewalk.”
The dates of Gilmore's arrests were June 14, 2011 (2012 CR 168); September 30, 2011 (2012 CR 167); and October 26, 2011 (2012 CR 169). The incidents took place on the sidewalk in front of the Weaver's store, located at the intersection of Massachusetts and Ninth Street in Lawrence. Gilmore was tried on January 27, 2012, in Lawrence Municipal Court regarding all three incidents. Gilmore argued ordinance 16–803(4) was unconstitutionally vague. After hearing arguments by both parties, the court took Gilmore's motion under advisement. On February 8, 2012, the court granted Gilmore's motion for judgment of acquittal and found that ordinance 16–803(4) was unconstitutionally vague.
The City of Lawrence (City) reserved the question of law and appealed to the district court on February 21, 2012. After hearing oral argument, the court issued a memorandum opinion finding ordinance 16–803(4) to be constitutional. Gilmore appeals.
An appellate court's standard of review on the issue of subject matter jurisdiction is unlimited. State v. Patton, 287 Kan. 200, 205, 195 P.3d 753 (2008).
The City contends the appellate court does not have subject matter jurisdiction to hear the case. The City argues that because Gilmore was not convicted or sentenced, there is no final judgment from which he can appeal.
Kansas appellate courts have jurisdiction only as provided by law. Patton, 287 Kan. at 206, 195 P.3d 753 (citing K.S.A. 22–3608). Under K.S.A.2011 Supp. 22–3602(a), a criminal defendant can appeal from any judgment against the defendant in the district court and “upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed.” A judgment has been rendered when the defendant has been convicted and sentenced or imposition of sentence suspended. See State v. Howard, 44 Kan.App.2d 508, 511, 238 P.3d 752 (2010) (citing City of Topeka v. Martin, 3 Kan.App.2d 105, 590 P.2d 106 [1979] ). Generally, “there must be a conviction with sentence imposed before a defendant in a criminal case has a ‘judgment’ from which he can appeal” City of Kansas City v. Sherman, 9 Kan.App.2d 757, 758, 687 P.2d 1383 (1984).
While the right to appeal a judgment in a criminal case ordinarily involves the imposition or suspension of sentence, the cases of Howard, Martin, and Sherman differ drastically from this case which deals with a question of law reserved by the City, as none of the former cases dealt with a question reserved. In Howard, the issue was whether an appeal filed outside of the time limit conferred jurisdiction, and, under the facts of the case, the court determined it did not. 44 Kan.App.2d at 514, 238 P.3d 752. In Martin, the court dealt with a criminal conviction for driving under the influence of alcohol and determined that because a sentence had not been imposed, and no other action had been taken that could be construed as an appealable order, the court lacked jurisdiction to hear the appeal. 3 Kan.App.2d at 105, 590 P.2d 106. In Sherman, the court considered the district court's decision to reverse the municipal court's dismissal of charges and remand for further proceedings. The Sherman court held that because there had been no determination as to the underlying charges, the decision to remand was not an appealable order. 9 Kan.App.2d at 759, 687 P.2d 1383.
In State v. Reed, 145 Kan. 459, 461, 65 P.2d 1083 (1937), the Kansas Supreme Court considered the State's appeal on a question of law reserved in regard to violations of the Motor Carrier Act. The court found that the right of the State to reserve questions for appellate review is an important one, frequently transcending what may be involved in the particular instance giving rise to those questions. The court explained:
“The present case is a good illustration of the point. It is of little moment whether these two defendants are convicted and fined, or perhaps paroled, for the infractions of this statute as charged in the information in this isolated instance; but it is highly important that the statute, if valid, should be respected and obeyed by all contract carriers operating motor vehicles on the highway; and if the statute is invalid it is a matter of prime importance that its infirmities should be authoritatively declared.” 145 Kan. at 461, 65 P.2d 1083.
Under the reasoning set forth by the City, the district court would become the final arbiter of the constitutionality of a municipal ordinance in cases where the prosecution receives a favorable ruling from the district court. While the holding in Reed specifically addressed the importance of the State's right to appeal on a question of law reserved, not allowing a defendant to appeal from an adverse ruling on a question reserved could seriously undermine the unique strength of our adversarial system of justice. The Kansas Supreme Court addressed the paramount importance of our adversarial system of justice in State v. Carter, 270 Kan. 426, 435–36, 14 P.3d 1138 (2000), regarding a claim of ineffective assistance of counsel. The court cited language from United States v. Cronic, 466 U.S. 648, 655, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984):
“The substance of the Constitution's guarantee of the effective assistance of counsel is illuminated by reference to its underlying purpose. “[T]ruth,” Lord Eldon said, “is best discovered by powerful statements on both sides of the question.” This dictum describes the unique strength of our system of criminal justice. “The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” ‘ “ Carter, 270 Kan. at 435–36, 14 P.3d 1138.
While an appellate court would ordinarily not have jurisdiction to review a judgment in a criminal case absent the imposition or suspension of sentence, this case presents a special circumstance because it deals with a question of law reserved. Following the rationale in Reed, determining the validity of the ordinance in question is of great importance irrespective of any sentence or lack thereof imposed on Gilmore. See 145 Kan. at 461, 65 P.2d 1083. With respect to the Carter court's discussion of the importance of our adversarial system, Gilmore's appeal of an adverse ruling 01 a question of law reserved invests us with subject matter jurisdiction to hear this case. See 270 Kan. at 435–36, 14 P.3d 1138. This appeal is properly before the court.
We also need to address the specific question of whether the matter is moot. The standard for determining whether an issue is moot is whether it could have any practical effect on a then-existing controversy. We will not render op inions in appeals that present moot issues or where judgment would have no practical effect on a then-existing controversy. Nevertheless, in such cases, we will proceed to judgment whenever dismissal of an appeal adversely affects rights vital to the parties, even where the judgment will not be enforceable due to lapse of time or other changed circumstances. State v. Zirkle, 15 Kan.App.2d 674, 676, 814 P.2d 452 (1991).
The City argues Gilmore's appeal is moot because he was acquitted by the municipal court and was not subject to conviction or sentence by the district court. In support of its proposition, the City cites State v. Aleman, 16 Kan.App.2d 784, 786, 830 P.2d 64,rev. denied 251 Kan. 940 (1992), which states that an appellate court will not render opinions in appeals which present moot issues or where judgment could have no effect on a then-existing controversy. In reaching its decision, the Aleman Court reiterated the standard set forth in Zirkle and found that a defendant who had been released on parole following a nolo contendere plea for cocaine possession was still “under sentence” and therefore had an appealable judgment. Aleman, 16 Kan.App.2d at 789, 830 P.2d 64.
The facts in Aleman differ greatly from those in this case. Gilmore was arrested three times and tried under subsection (4) of ordinance 16–803. He presently remains subject to this ordinance. In State v. Hilton, 295 Kan. 845, 850–51, 286 P.3d 871 (2012), the court recognized that the application of the court-made mootness doctrine does not raise a jurisdictional question but is subject to an exception where the question is capable of repetition and is of public importance.
In this case, Gilmore argues that the vagueness of the ordinance interferes with his First Amendment rights under the United States Constitution. In City of Wichita v. Wallace, 246 Kan. 253, 788 P.2d 270 (1990), the court recognized the importance of the protection of First Amendment rights by allowing an exception to normal standing requirements, as the existence of the ordinance alone could cause a person not before the court to refrain from engaging in constitutionally protected speech or expression. In regard to this potential chilling effect, the court went on to state:
“In the present case, because of its vagueness the ordinance had the effect of precluding or severely restricting activities protected under the First Amendment. Clearly, both the defendant's and third parties' First Amendment rights are impacted by the ordinance, thus permitting the defendant to raise its unconstitutional overbreadth as applied to her as well as to others. Since the ordinance suffers from both vagueness and overbreadth as applied to the defendant, the district court correctly found that she had standing to challenge the constitutionality of the ordinance .” 246 Kan. at 268, 788 P.2d 270.
In this case, the issue of the vagueness of the ordinance presents both a question that is capable of repetition and raises a question of public importance. Because Gilmore has been arrested three times and presently remains subject to criminal penalty under the ordinance, this is a question capable of repetition. This ordinance is being challenged as vague and overbroad in a way that poses a potential First Amendment issue. It raises a question of public importance because the ordinance has the potential to deter constitutionally protected conduct by both Gilmore and third parties. This appeal is therefore not moot.
We now turn to the question of constitutional vagueness. The issue of the constitutionality of an ordinance presents a question of law over which this court's standard of review is unlimited. City of Lincoln Center v. Farmway Co–Op, Inc., 47 Kan.App.2d 335, 339, 274 P.3d 680 (2012). Interpretation of a statute is a question of law, and an appellate court's review is unlimited. State v. McAffry, 263 Kan. 521, Syl. ¶ 1, 949 P.2d 1137 (1997).
The void-for-vagueness doctrine requires that an ordinance define the criminal offense with sufficient definiteness that ordinary people car understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 353, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).
Gilmore contends that ordinance 16–803(4) is unconstitutionally vague on its face. He argues that the lack of a scienter and mens rea requirement in the ordinance gives rise to vagueness concerning his First Amendment rights.
The constitutionality of a statue is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the United States Constitution. In determining constitutionality, it is our duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe a statute as constitutionally valid, that should be done. Wallace, 246 Kan. at 257, 788 P.2d 270 (citing Moody v. Board of Shawnee County Comm'rs, 237 Kan. 67, 74–75, 697 P.3d 1310 [1985] ).
When construing a statute, the United States Supremo Court has held that the plain meaning of the statutory text should be followed except when it would require an absurd result or suggests a scrivener's error. See Massachusetts v. EPA, 549 U.S. 497, 527–34, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (stating that interpretation of a statute should be consistent with the plain meaning of the statutory text); Lamie v. United States Trustee, 540 U.S. 526, 530–31, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (holding that interpreting a statute on the basis of plain meaning of the statutory text is not appropriate when it clearly suggests that an error was made by those who wrote it); United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (holding that interpreting a statute based on the plain meaning of the text would not be appropriate when it would require an absurd result).
The courts shall not strike down a statute unless the infringement of the superior law is clear beyond substantial doubt. The propriety, wisdom, necessity, and expediency of legislation are exclusively matters for legislative determination. Courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute to be in the public interest. Wallace, 246 Kan. at 257–58, 788 P.2d 270.
Gilmore asserts that subsection (4) of ordinance 16–803 is void for vagueness because it does not sufficiently define “evasive action” and does not have an intent requirement. In support of his argument, Gilmore cites several cases by Kansas courts and the United States Supreme Court; however, these cases are distinguishable from this case.
First, Gilmore cites a case the district court relied on in reaching its determination, Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Gilmore relies on the holding in Coates, where a Cincinnati ordinance was found to be unconstitutionally vague because it failed to sufficiently define the term “annoying,” in support of his contention that ordinance 16–803 is similarly vague for not defining “evasive action.” 402 U.S. at 615–16.
Gilmore further cites Luna v. City of Ulysses, 28 Kan.App.2d 413, 414, 17P.3d 940 (2000), wherein the court held that a noise ordinance was impermissibly vague for failing to define an objective standard for the terms “loud,” “excessive,” and “mentally annoying.” The Luna court cited the Coates decision and agreed that failing to set an objective standard defining the term “annoying” created impermissible vagueness in the ordinance. Luna, 28 Kan.App.2d at 416, 17 P.3d 940. In explaining its reasoning, the court quoted Grayned v. City of Rockford, 408 U.S. 104, 108–09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), stating:
“ ‘It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. Vague laws may trap the innocent by net providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably end citizens to “ ‘steer far wider of the unlawful zone’... than if the boundaries of the forbidden areas were clearly marked.' “ “Luna, 28 Kan.App.2d at 415, 17 P.3d 940.”
Gilmore's reliance on these authorities is unavailing. The cases cited by Gilmore deal with a standard for the term “annoying.” By its very definition the term “annoying” hinges on a subjective element. The determination of an annoyance inherently bears on the perception and feeling of the person observing the speech, conduct, or noise at issue; thus, what may constitute an annoyance to one person may not do so for another. For this very reason, the Luna court found that an objective standard for the term must be given for the ordinance to be valid. See 28 Kan.App.2d at 416, 17 P.3d 940. The Coates court addressed its concern with the potential subjectivity of the term “annoying,” stating:
“The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct ... [but][i]t cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend on whether or not a policeman is annoyed.” Coates, 402 U.S. at 614.
While the infirmities of the ordinances in the cases cited by Gilmore might well have been remedied with an objective definition of the term “annoying,” or the application of a “reasonable person standard,” that is beyond the scope of the analysis in this case.
Here, the term at issue, “evasive action,” does not lend itself to the same subjective analysis as the term “annoying.” Where Kansas courts have dealt with the term “evasive action,” the term has been understood consistent with its plain meaning. In Simpson v. Farmers Ins. Co., Inc., 225 Kan. 508, 515, 592 P.2d 445 (1979), the court used the language “evasive action executed to avoid a collision.” (citing Montoya v. Dairyland Insurance Co., 394 F.Supp. 1337, 1340 [D. N.M.1975] ). In Hallett v. Stone, 216 Kan. 568, 578, 534 P.2d 232 (1975), the court characterized “evasive action” as action taken by a motorist to avoid a collision with another vehicle. In Johnston Administratrix v. Ecord, 196 Kan. 521, 528, 412 P.2d 990 (1966), the court found that taking “evasive action” also applied in the context of avoiding a collision with a dog. More recently, in State v. Hysom, No. 95,420, 2006 WL 2937535 (Kan.App.2006) (unpublished opinion), the court discussed “evasive action” where one driver suddenly slammed on his brakes forcing another driver to swerve and go around him to avoid a collision. In these cases, “evasive action” means action taken in order to avoid a collision with a person, vehicle, animal, structure, or object.
In this case, to take “evasive action” means that when a person obstructs traffic in a manner which is consistent with the definition provided in the ordinance, it causes another person or driver to alter their path or course of travel in order to avoid a collision. Thus, the second deficiency in Gilmore's argument is that the ordinance gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he or she may act accordingly. Moreover, the ordinance not only gives a person a reasonable opportunity to know what conduct is prohibited based on its plain meaning, the person obstructing traffic is given an actual warning before they are subject to arrest.
In reaching its determination, the district court relied on Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 21, 15 L.Ed.2d 176 (1965), which involved an ordinance very similar to the one at issue. In Shuttlesworth, a group of protestors was ordered to disperse and all but one person complied. The person remaining—Shuttlesworth—was arrested and convicted under a Birmingham, Alabama, ordinance which made it unlawful for any person to stand or loiter on a street or sidewalk after having been requested by police to move on. The Court stated that a literal reading of the ordinance would be unconstitutional. However, the Court held it to be constitutional under a judicial construction where the ordinance only applied when a person obstructed free passage and refused to move on. 382 U.S. at 90–91. Similar to Shuttlesworth, the ordinance here only criminalizes the refusal to move on after a person who is obstructing traffic or free passage has been given a warning by police.
Gilmore further argues that the ordinance is unconstitutionally vague because it does not contain a mens rea requirement. Gilmore relies on Chicago v. Morales, 527 U.S. 41, 54–55, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999), in support of his argument. In Morales, the Court upheld a Chicago ordinance that prohibited gang members from loitering in a public place with one or more other persons “with no apparent purpose” after they had been ordered to disperse by police. The Court held that because the ordinance did not contain a mens rea requirement, the mere warning by a police officer to disperse did not give sufficient notice as to what conduct was prohibited and therefore posed a risk of criminalizing otherwise lawful conduct. 527 U.S. at 54–55, 58–59.
Gilmore's argument is premised on the idea that subsection (4) of the ordinance is severable from the ordinance as a whole and therefore lacks a mens rea requirement. Gilmore points to the fact that subsection (3) of the ordinance specifically states “[i]ntentionally obstruct traffic,” and that “obstruct traffic” is later defined in the ordinance, but that no intent, or mens rea, requirement is present in subsection (4), nor is a definition, or scienter requirement, given for “taking evasive action.”
Gilmore's argument is unpersuasive in consideration of the overall construction of ordinance 16–803. As a whole, the ordinance deals with prohibited uses of rights-of-way. The ordinance begins:, “It shall be unlawful to do any of the following ....“ (Emphasis added.) Subsection (3) continues: “ [i]ntentionally obstruct traffic,” and subsection (4) goes on to say: “ [c]ontinue to obstruct traffic on any ... sidewalk ... after having been ordered by a police officer to end such obstruction.” (Emphasis added.) The ordinance, as Gilmore readily concedes, also gives a clear definition of “obstruct traffic.”
While a literal reading of the ordinance would indicate that subsection (4) alone could give rise to a violation, interpreting the ordinance in this manner is inconsistent with its overall construction and could give rise to an absurd result. A careful reading of ordinance 16–803 as a whole suggests it should be construed as follows:
It shall be unlawful to intentionally obstruct traffic on any street, sidewalk, or other right-of-way of this City and to continue to obstruct traffic on any street, sidewalk, or other right-of-way of this City after having been ordered by a police officer to end such obstruction. “Obstruct traffic” means to walk, stand, sit, lie, or place an object in a manner as to block lawful passage by another person or vehicle, or to require another person or driver to take evasive action to avoid physical contact, or to block the entrance of any private or public building or establishment from any public street or sidewalk.
The ordinance should therefore be read to mean that where intentional obstruction as defined in the ordinance gives rise to an order to end the obstruction, continuation of the intentional obstruction then makes the conduct unlawful absent a right-of-way use permit as provided in Article 8. In construing the ordinance in this manner, “take evasive action” should be interpreted consistently with its plain meaning; that is, another person or driver must alter their path or course of travel in order to avoid a collision with the offending party.
As Justice O'Connor stated in Morales, the City is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. 527 U.S. at 72 (O'Connor, J., concurring) (quoting Coates, 402 U.S. at 614). The City can do this though the enactment and enforcement of ordinances “directed with reasonable specificity toward the conduct to be prohibited.” Coates, 402 U.S. at 614. When an ordinance can be construed in a way that makes it constitutionally valid, and it does not infringe upon the superior law in a manner that is clear beyond substantial doubt, it should be upheld. See Wallace, 246 Kan. at 257, 788 P.2d 270. The void-for vagueness doctrine requires that an ordinance define the criminal offense with sufficient definiteness that an ordinary person can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender, 461 U.S. at 357.
Here, the conduct prohibited by the ordinance is clear. An ordinary person can understand what conduct is prohibited because the term “evasive action” is unambiguous based on its plain meaning and the term “obstruct traffic” is clearly defined in the ordinance. Moreover, the term “evasive action” does not lend itself to the same subjective interpretation as the term “annoying” in the cases relied on by Gilmore. The clear and objective nature of the term “evasive action” and the clearly defined term “obstruct traffic” do not encourage arbitrary and discriminatory enforcement. All doubts must be resolved in favor of the ordinance's validity, and it is our duty to uphold the ordinance rather than defeat it. This ordinance can be construed in a reasonable way that makes it constitutionally valid; therefore, the ordinance is upheld.
Affirmed.