City of Overland Park v. Niewald, 72457
| Decision Date | 08 December 1995 |
| Docket Number | No. 72457,72457 |
| Citation | 258 Kan. 679,907 P.2d 885 |
| Parties | CITY OF OVERLAND PARK, Appellee, v. Bryan NIEWALD and Todd Jung, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. K.S.A.1994 Supp. 22-2502(a) is intended to govern the issuance of search warrants in criminal investigations. It does not apply to or prohibit the issuance of administrative warrants which comport with the constitutional requirements of reasonableness.
2. In reviewing the opinion of the Court of Appeals in City of Overland Park v. Niewald, 20 Kan.App.2d 909, 893 P.2d 848 (1995), we disapprove of the language "Under the provisions of K.S.A.1994 Supp. 22-2502," in Syllabus p 6 and the corresponding statement in the opinion, all as more fully set forth in this opinion. We hold that the Court of Appeals' opinion, absent the above language, is correct and affirm that opinion as modified.
Todd Jung and Bryan Niewald, appellants, were on the brief pro se.
J. Bart Budetti, Senior Assistant City Attorney, argued the cause and was on the brief, for appellee.
In the district court, the City of Overland Park (City) filed a petition for enforcement of its fire inspection ordinance against Bryan Niewald and Todd Jung, owners of Central Video Services, a business located in Overland Park. The petition alleged that Niewald and Jung refused to allow city fire inspectors access to their business premises for the purpose of conducting a routine periodic fire-prevention inspection. On cross-motions for summary judgment, the district court ruled in favor of the City and ordered issuance of a warrant to enforce the fire inspection ordinance. The Court of Appeals affirmed. City of Overland Park v. Niewald, 20 Kan.App.2d 909, 893 P.2d 848 (1995). This court granted Niewald and Jung's petition for review.
The following facts were stipulated to by the parties:
1. The City is a municipal corporation operating under the laws of the State of Kansas.
2. Bryan Niewald and Todd Jung are owners of Central Video Services, which has its principal place of business at 8991 West 75th Street, Overland Park, Kansas. That place of business has not been inspected by the City's fire department.
3. The City's fire department attempted to inspect that place of business.
4. Niewald and Jung have refused to allow City fire inspectors access to their place of business.
5. Regular periodic fire inspections are done of commercial businesses in Overland Park pursuant to the City's fire prevention code and an administrative plan of the Overland Park Fire Department to inspect all business premises within the city once each calendar year. It provides for inspections at reasonable hours for the purpose of ascertaining and causing to be corrected any conditions liable to cause fire, contribute to the spread of fire, interfere with firefighting operations, or cause any other fire safety violation.
6. The City's fire prevention code applies equally to new and existing buildings and conditions, except those which do not constitute a distinct hazard to life or property.
7. The City does not have probable cause to suspect that any conditions liable to cause fire, contribute to the spread of fire, interfere with firefighting operations, or cause any other fire safety violation exist on the business premises of Niewald and Jung.
8. There is no written agreement, contract, other binding instrument, or show of harm between the City and Niewald and Jung by which to establish an equity relationship.
9. The City's fire prevention ordinance incorporates by reference a savings clause.
Upon consideration of cross-motions for summary judgment, the district court stated the issues before it as follows:
1. Whether the district court has jurisdiction over the action.
2. Whether K.S.A.1994 Supp. 22-2502 limits the district court's power to issue a warrant for a search which lacks probable cause that some crime has been or is being committed.
3. Whether a search that lacks probable cause is constitutional under the federal and state Constitutions.
4. Whether City Ordinance BC-FP-1671, subsection F-107.1-3, is constitutional and enforceable against Niewald and Jung.
The district court concluded that it had jurisdiction, that it could issue a search warrant without probable cause (because K.S.A.1994 Supp. 22-2502, which governs the issuance of search warrants in criminal cases, did not apply), that a search without probable cause was constitutional, and that the City ordinance is constitutional and enforceable against Niewald and Jung.
The Court of Appeals agreed that the district court had jurisdiction of the action. 20 Kan.App.2d at 911, 893 P.2d 848. The Court of Appeals disagreed with the rationale of the district court but upheld the judgment of the district court on different grounds. 20 Kan.App.2d at 915, 893 P.2d 848. Where the district court concluded that K.S.A.1994 Supp. 22-2502 did not apply, the Court of Appeals concluded that
"prior to issuing an administrative search warrant, a magistrate or district judge is required to find the pertinent regulation meets the requirements established in Camara [v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) ], thus providing probable cause to issue the warrant." 20 Kan.App.2d at 915, 893 P.2d 848.
Thus, both courts found that the administrative search warrant was constitutional. 20 Kan.App.2d at 915, 893 P.2d 848.
Niewald and Jung raise two issues:
1. Did the district court properly exercise jurisdiction over the City's petition for enforcement of its fire inspection ordinance?
2. Is the warrant issued by the district court for the administrative search of Niewald and Jung's business premises valid?
The Court of Appeals concluded that the issuance of an administrative search warrant is within the general jurisdiction of the district court. It noted that the municipal court is precluded by K.S.A. 12-4104 from issuing the warrant. K.S.A. 12-4104 provides that a municipal court has jurisdiction over cases involving violations of city ordinances, but that "[s]earch warrants shall not issue out of a municipal court." K.S.A. 20-301 provides that district courts "shall have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law." Because Niewald and Jung cited no authority that removed jurisdiction from the district court, the Court of Appeals concluded that the issuance of the administrative search warrant was within the district court's jurisdiction. 20 Kan.App.2d at 910-11, 893 P.2d 848. We agree.
We note that in their petition for review, Niewald and Jung clarify their contention that the district court was without jurisdiction to issue the administrative search warrant. Their position is that no Kansas court has authority to issue an administrative search warrant. Their rationale is that K.S.A.1994 Supp. 22-2502 is a proviso to the general grant of jurisdiction in K.S.A. 20-301. They contend that the 22-2502 provision for the issuance of search warrants in criminal proceedings forecloses issuance of a search warrant in a civil proceeding. Thus, in reality, their argument is not one of a lack of jurisdiction to issue an administrative (i.e., civil) search warrant but, rather, a lack of authority.
In holding that the district court had authority to issue the warrant, the Court of Appeals relied on the provisions of K.S.A.1994 Supp. 22-2502, stating in part:
20 Kan.App.2d at 914-15, 893 P.2d 848.
Niewald and Jung argued in their petition for review that the Court of Appeals overlooked the 22-2502 specification of probable cause of what. K.S.A.1994 Supp. 22-2502(a) provides in part: "A search warrant shall be issued only upon the ... statement ... of any person under oath or affirmation which states facts sufficient to show probable cause that a crime has been or is being committed." (Emphasis added.) They have a point. K.S.A.1994 Supp. 22-2502(a) requires a showing of probable cause to believe that a crime has been or is being committed. It does not authorize issuance of a warrant upon a showing of a policy designed to detect and correct code violations before harm may result from them.
Niewald and Jung also direct this court's attention to the plain and unambiguous statutory language which authorizes issuance of a search warrant only upon a showing of probable cause to believe that a crime has been or is being committed. It is their position that this language disallows administrative search warrants. In other words, they contend that the legislature worded K.S.A.1994 Supp. 22-2502(a) so as to occupy the entire field. Its existence, therefore, forecloses issuance of a search warrant in any circumstance other than one in which there is probable cause to believe that a crime has been or is being committed. We agree 22-2502(a) does not apply, but it does not follow that the district court is foreclosed from issuing an administrative search warrant.
The Court of Appeals was not willing to stray far from 22-2502 and...
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