City of Marysville v. Sain
| Decision Date | 23 January 2015 |
| Docket Number | 111,077. |
| Citation | 342 P.3d 2 (Table) |
| Parties | CITY OF MARYSVILLE, Appellant, v. Matthew Dale SAIN, Appellee. |
| Court | Kansas Court of Appeals |
John McNish, of Bolton & McNish, LLC, of Marysville, for appellant.
Judd L. Herbster, of Herbster Law Firm, L.L.C., of Topeka, for appellee.
Before MALONE, C.J., GREEN and BUSER, JJ.
This is an appeal of the Marshall County District Court's dismissal of the City of Marysville's (City) appeal after the Marysville Municipal Court dismissed charges of domestic battery and disorderly conduct against Matthew Sain during a municipal court trial. Having carefully reviewed the record on appeal, the parties' briefs, and considered the oral arguments, we hold the City has failed to declare its basis for jurisdiction to appeal to the Court of Appeals. As a result of this failure, the City has not shown that our court has jurisdiction or that the City has complied with our rules of appellate practice. Accordingly, under the unique facts of this case, we decline to review the City's appeal to our court and affirm the district court's dismissal of the City's appeal to that court.
The Marysville Police Department responded to a domestic disturbance call at Matthew's home on May 12, 2012. According to Officer Timothy Anderson, Matthew's wife, Rachel, reported that after grabbing jewelry out of her hands and throwing it in a toilet, Matthew hit her in the head with the butt of a shotgun. The incident was witnessed by some children in the home.
After the disturbance, the City charged Matthew in the municipal court with domestic battery (class A misdemeanor), and disorderly conduct (class C misdemeanor). The City also charged Rachel with domestic battery due to the incident.
On August 21, 2012, Matthew's case proceeded to a bench trial. Because municipal courts are not courts of record, no record was made of the proceeding. See State v. Hughes, 290 Kan. 159, 172, 224 P.3d 1149 (2010). The district court, however, made findings of fact regarding the municipal court trial.
The district court found that Rachel was called to the stand and sworn as a witness at trial. While Rachel answered a preliminary question, she invoked her Fifth Amendment privilege under the United States Constitution and § 10 of the Kansas Constitution Bill of Rights against self-incrimination and refused to answer questions regarding the incident. The municipal court judge declined the City's request to compel Rachel to testify and allowed her to assert her Fifth Amendment privilege over the City's objection.
At this point in the trial proceedings the record is uncertain. At the hearing on Mathew's motion to dismiss the City's appeal in the district court, the City asserted that after the municipal court declined to compel Rachel to testify, the City informed the judge “that in light of its ruling, the City was taking an interlocutory appeal.” The City, however, denied that it “sought voluntary dismissal” of the municipal case. Mathew disagreed with the City's version of the facts, and the district court in its memorandum decision found:
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Returning to the procedural background of the case, the City filed a notice of appeal in the Marshall County District Court from “the [m]uncipal [c]ourt's [o]rder of refusing to compel the testimony of Rachel Sain and dismissing the charges of [d]omestic [b]attery.” (As an aside, on appeal the parties appear to agree that the municipal court actually dismissed both of the City's charges against Matthew.) The City claimed that because the municipal court had accepted Rachel's plea and imposed a sentence on her, she could not assert the privilege against self-incrimination, because “there was no possibility of being convicted a second time for the same offense.” The City asked the district court to “sustain the appeal filed herein and direct the testimony of Rachel Sain be compelled and that the matter be reinstated for trial.”
Subsequently, Matthew filed a motion to dismiss the City's appeal with the district court. In particular, Matthew alleged there was no statutory basis for the City's appeal, and the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution shielded him from a second prosecution. According to Matthew, because the City had voluntarily elected to dismiss its case during trial, the dismissal equated to a judgment of acquittal, which prohibited both an appeal and a subsequent prosecution.
In response, the City contended that it had the authority to appeal the municipal court's ruling pertaining to Rachel's invocation of the Fifth Amendment because K.S.A. 12–4601 authorizes municipalities to appeal “ ‘upon questions of law.’ “ The City further argued that its appeal did not violate the prohibition against double jeopardy because the prosecutor did not voluntarily dismiss the case.
On December 4, 2012, the district court held a hearing on Matthew's motion to dismiss the City's appeal. After entertaining the parties' arguments, the district judge took the matter under advisement. While the judge's ruling was pending, the district court received a “motion,” which stated: “I Rachel Sain ‘Gately’ would like to testify on the states [sic ] behalf regarding this matter, I am the victume [sic ] and Im [sic ] not affraid [sic ] anymore. please [sic ] allow me to help.”
On November 26, 2013, the district court issued a memorandum decision granting Matthew's motion to dismiss the City's appeal. In particular, the district court found the Double Jeopardy Clause barred the City from seeking to have the matter against Matthew reinstated for trial. The district court began its analysis by explaining that jeopardy attaches when the first witness is sworn and K.S.A.2013 Supp. 21–5110(a)(3) provides that a subsequent prosecution for the same crime is prohibited if the former prosecution was terminated without the consent of the defendant after he or she had been placed in jeopardy. According to the district court, the record showed that a trial commenced against Matthew, and after Rachel was sworn, Matthew was placed in jeopardy.
Despite the City's assertion to the contrary, the district court found that because the prosecutor did not agree with the municipal court's “legal ruling” on Rachel's assertion of the Fifth Amendment, the City either voluntarily elected to dismiss its case or requested that the municipal court enter a dismissal. As a result, the district court concluded the Double Jeopardy Clause mandated that it dismiss the City's appeal because the municipal court's dismissal was entered without Matthew's consent or affirmative acts.
The City filed a timely appeal with our court by filing a notice in the district court. The City's notice of appeal reads: “COMES NOW the Plaintiff and appeals from certain judgments entered herein on November 22, 2013 and all previous rulings and orders on all issues relating decided therein to the Court of Appeals of the State of Kansas.” The notice did not include any statutory citation authorizing the City to appeal to our court or request any particular relief.
Subsequently, in its docketing statement filed with our court, the City cited K.S.A.2013 Supp. 22–3601 and K.S.A. 60–2101, as the statutory authority for its appeal. The statutes cited are general statutes that define the jurisdiction of Kansas appellate courts, but they do not provide statutory authorization for a City to appeal a district court's ruling dismissing a municipal court appeal to the Court of Appeals.
In its docketing statement, the City identified three issues on appeal:
“(i) whether or not a Municipal Judge can dismiss a case during trial after a City Prosecutor has stated that an interlocutory appeal will be taken to the district court upon a question of law; (ii) whether a municipal court judge has the authority to refuse to continue a matter to prevent an interlocutory appeal and (iii) whether a witness can refuse to testify when there is no risk of conviction, prosecution or jail sentence.”
The City did not request any particular relief in the docketing statement.
Given the unique and rather confusing factual and procedural background of this case, it is necessary to consider whether the City's appeal is properly before our court.
The right to an appeal is purely statutory; therefore, Kansas appellate courts only have jurisdiction to consider appeals taken in the manner prescribed by statute. State v. Gill, 287 Kan. 289, 293–94, 196 P.3d 369 (2008). When the record discloses a lack of jurisdiction, it is the appellate court's duty to dismiss the appeal. Ryser v. State, 295 Kan. 452, 456, 284 P.3d 337 (2012). Whether jurisdiction exists is a question of law subject to de novo review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
“The prosecution's ability to appeal a district court's ruling is substantially limited when compared to the defendant's right of appeal.” City of Liberal v. Witherspoon, 28 Kan.App.2d 649, 650, 20 P.3d 727 (2001). K.S.A.2013 Supp. 22–3602(b) provides the prosecution may only appeal, as a matter of right, from actions before a district judge in the following circumstances, and no others:
Under the circumstances of this case, the City...
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