City of Olathe v. Clark

• Decision Date: 26 November 2014
• Docket Number: 111,354.
• Citation: 338 P.3d 24 (Table)
• Parties: CITY OF OLATHE, Appellee, v. Eric S.CLARK, Appellant.
• Court: Kansas Court of Appeals

338 P.3d 24 (Table)

CITY OF OLATHE, Appellee
v.
Eric S.CLARK, Appellant.

111,354.

Court of Appeals of Kansas.

Nov. 26, 2014.
Review Denied July 22, 2015.

Eric S. Clark, appellant pro se.

Curt D. Hoover, assistant municipal prosecutor, for appellee.

MEMORANDUM OPINION

PER CURIAM.

This is an appeal from a traffic infraction. Eric S. Clark was cited by the City of Olathe (City) for driving without a seatbelt in violation of an Olathe municipal ordinance. Clark contends the ordinance is unconstitutional in general and because it shifts the burden of proof at trial. We affirm the finding of guilt.

FACTUAL AND PROCEDURAL BACKGROUND

On November 24, 2012, Thomas Foxworthy, a City police officer, observed Clark driving a 1994 Ford Escort without wearing a seatbelt. Olathe Traffic Ordinance (Ordinance) 10.01.182.1(a) requires that “each occupant of a passenger car manufactured with safety belts in compliance with federal motor vehicle safety standard no. 208, who is 18 years of age or older, shall have a safety belt properly fastened about such person's body at all times when the vehicle is in motion.” There is no dispute that this ordinance applied to Clark's vehicle.

Officer Foxworthy stopped Clark for the apparent violation of the ordinance. The ordinance provides several exceptions to the seatbelt requirement, including for “[a]n occupant ... who possesses a written statement from a licensed physician that such person is unable for medical reasons to wear a safety belt system.” Ordinance 10.01.182.1(c)(1). Officer Foxworthy had no knowledge of any exception that applied, so he issued the traffic citation to Clark.

Clark unsuccessfully challenged the citation in municipal court, where he was found guilty and fined $10. He appealed to the district court. Clark produced a written brief in the district court which apparently attacked the constitutionality of the ordinance. Although the district court considered the brief, the document is omitted from the record on appeal. Clark presented no evidence and argued in closing that “the City did not present evidence that would prove beyond a reasonable doubt that [he] was not in possession of a written statement from a licensed physician indicating that [he] was unable to wear a seatbelt safety system for medical reasons.” In finding Clark guilty of violating the ordinance, the district judge rejected Clark's argument:

“The statute requires that all drivers over the age of 18 shall wear a seatbelt, a safety belt ... at all times when the vehicle is in motion. [Officer Foxworthy] did testify that he could see that you were not wearing a seatbelt ... and that your vehicle was in motion at the time.

“I think that that's what the ordinance requires. I think when the officer makes the stop, if you have a written statement from your doctor saying that you shouldn't be wearing a safety belt, that you would need to produce that to the officer. It's your responsibility to bring forth that information to the officer, and then if the officer sees that information, he would not have written a ticket.

“It's interesting to note that even though you were given the opportunity to testify, you didn't testify that you did in fact have a written statement from a licensed physician stating that you were unable to wear a seatbelt on that date.”

Clark appeals.

Constitutionality of the Ordinance

Clark contends “[t]he Olathe Municipal Ordinance 10.01.182.1(a) SEAT BELTS is unconstitutional.” Clark also asserts in passing that his conviction under an unconstitutional ordinance deprived the district court of “subject matter jurisdiction over the alleged violation.” The City addresses Clark's jurisdictional assertion rather than his constitutional claim.

We examine pro se briefs for substance, not form. State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). We do not address Clark's passing assertion regarding jurisdiction. See State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011) (a point raised incidentally but not argued is deemed waived or abandoned on appeal). The gist of Clark's argument is that the ordinance is unconstitutional, so that is the issue we will consider.

Unfortunately, we do not know precisely what constitutional grounds Clark raised below. His brief to the district court was omitted from the record on appeal. The record does show the district court identified...