City of Wichita v. Tilson

• Decision Date: 28 June 1993
• Docket Number: No. 68575,68575
• Parties: CITY OF WICHITA, Kansas, a municipal corporation, Appellant, v. Elizabeth TILSON, Appellee.
• Court: Kansas Supreme Court

Page 911

855 P.2d 911

253 Kan. 285

CITY OF WICHITA, Kansas, a municipal corporation, Appellant, v. Elizabeth TILSON, Appellee.

No. 68575.

Supreme Court of Kansas.

June 28, 1993.

Syllabus by the Court

1. In a criminal prosecution for trespass upon the property of an abortion clinic, wherein the defendant asserted the defense of necessity, the background, history, and elements of the common-law criminal defense of justification by necessity are discussed and considered.

2. If recognized as a defense in a criminal case, the justification by necessity defense only applies when the harm or evil which a defendant seeks to prevent by his or her own criminal conduct is a legal harm or evil as opposed to a moral or ethical belief of the individual defendant.

3. The justification by necessity defense, except as codified in statutes such as those relating to self-defense and compulsion, has not been adopted in Kansas.

4. A woman has an unfettered constitutional right to an abortion during the first trimester of pregnancy and a somewhat more restricted right to abortion thereafter. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

5. The defense of justification by necessity cannot be utilized when the harm sought to be avoided is a constitutionally protected legal activity and the harm incurred by the defendant's acts is in violation of the law.

6. In a criminal prosecution for trespass upon the property of an abortion clinic, the defense of justification by necessity is inapplicable and evidence of when life begins is irrelevant. The admission of evidence of when life begins in such an action was error by the trial court.

Sharon L. Chalker, Asst. City Atty., argued the cause and Gary E. Rebenstorf, City Atty., was with her on the brief, for appellant.

Steven W. Graber, Hutchinson, argued the cause and was on the brief for appellee.

Louise Melling, of Reproductive Freedom Project, American Civil Liberties Foundation, of New York, New York, and Jim Lawing, Wichita, were on the brief for amici curiae American Civil Liberties Union, et al.

Richard D. Cimino, and Raphael F. Hanley, of St. Marys, were on the brief for amicus curiae Right to Life of Kansas, Inc.

John E. Cowles, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., Wichita, was on the brief for amicus curiae Women's Health Care Services, P.A.

PER CURIAM:

The City of Wichita appeals from the trial court's ruling that the justification by necessity defense absolved the defendant, Elizabeth A. Tilson, of criminal liability for her actions in trespassing on property owned by the Wichita Family Planning Clinic, Inc., (Clinic) on August 3, 1991. This appeal is taken pursuant to K.S.A. 22-3602(b)(3) on a question reserved by the City. We sustain the appeal.

The facts are not seriously disputed. On August 3, 1991, Elizabeth A. Tilson was arrested for trespassing on property of the Clinic located at 3013 East Central in Wichita, Kansas. The Clinic does not deny that it provides abortion services to some of its patients. Ms. Tilson and others were gathered at both entrances of the Clinic attempting to stop patrons from entering the Clinic. Ms. Deborah Riggs, administrator of the Clinic, asked the individuals to leave the premises. The protesters failed to respond to the request. Ms. Riggs then called Captain William Watson of the Wichita Police Department to the scene. Ms. Riggs asked Captain Watson to request the individuals to leave the Clinic premises. The protesters made no response to his command.

Ms. Tilson was subsequently arrested by Officer Gary Smith for criminal trespass in violation of Section 5.66.050(a) (1992) of the Code of the City of Wichita which provides in part:

"Criminal trespass is entering or remaining upon or in any land, structure, vehicle, aircraft or watercraft by a person who knows he/she is not authorized or privileged to do so, and:

"(a) Such person enters or remains therein in defiance of an order not to enter or to leave such premises [or] property personally communicated to such person by the owner thereof or other authorized person;

....

"Any person who commits a criminal trespass within the corporate limits of the city of Wichita shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than one thousand dollars or imprisonment which shall not exceed six months, or by both such fine and imprisonment. (Ord. No. 39-765, § 1)."

On November 13, 1991, the defendant was found guilty in Wichita Municipal Court of criminal trespass in violation of the city ordinance. The court ordered her to pay a $1,000 fine, serve six months in the Sedgwick County Adult Detention Facility, and pay all court costs. On the same date, the defendant appealed her conviction to the Sedgwick County District Court.

On January 14, 1992, the district court held a pretrial conference to determine if the court would hear evidence on the issue of when human life begins. At the hearing, the defendant noted that she would be asking the court to make the determination when life begins and at what point in time life has constitutional protection. The trial court found that evidence of when life begins was relevant and would be admitted. On January 21, 1992, the court ruled that it would allow the defendant to present evidence on any common-law defense, including the defense of necessity.

At trial, the defendant admitted that she blocked the entrance to the Clinic but asserted that her actions were excused by the necessity defense. Specifically, she claimed her actions were justified because "abortion takes the life of an unborn baby, and I wanted to prevent that, and I wanted to prevent the detrimental effect that happens to the woman, the father of the baby, the grandparents and brothers and sisters involved." There was no evidence introduced, and no claim has been made by the defendant, that the abortions performed by the Clinic were illegal or that the Clinic was operating in any illegal manner. Defendant in her brief, as she did before this court, takes great umbrage with being referred to as a "protester" and instead portrays herself as being on a "rescue" mission. By whatever name or designation she chooses to be known, it is admitted that she violated the criminal code of the City of Wichita.

On July 20, 1992, following a three-day bench trial, Judge Paul Clark held that the defendant had violated § 5.66.050(a) of the Code of the City of Wichita. He further held, however, that the defendant was absolved of any criminal liability for her actions, based upon the necessity defense. Judge Clark, in a 25-page memorandum opinion, held that the doctrine of justification by necessity was recognized under Kansas law. He additionally held that the doctrine was applicable to the defendant's actions and justified her trespassing upon the Clinic property for the purpose of saving a human life. At trial, over the objections of the City, the defendant was allowed to introduce expert testimony on the question of when life begins. The City did not attempt to controvert such evidence but instead took the position that the evidence was inadmissible because it was irrelevant to the issues before the court and that the necessity defense did not apply to the charges in this case.

Pursuant to K.S.A. 22-3602(b)(3), the City of Wichita timely appeals from the trial court's holding that the necessity defense was applicable to the defendant's act of criminal trespass on the property of the Clinic.

The issues as stated by the City in its docketing statement read:

"1. Did the District Court err in holding that the necessity defense was recognized by Kansas law on August 3, 1991?

"2. Did the District Court err in concluding that the necessity defense was applicable to the facts of this case thereby discharging the Defendant from criminal liability for her actions in violating Section 5.66.050(a) of the Code of the City of Wichita?"

The City contends that the trial court erred in concluding that the necessity defense was recognized by Kansas law and applied to defendant's criminal acts of trespass. These issues are questions of law subject to broad appellate review. State, ex rel., v. Doolin & Shaw, 209 Kan. 244, 261, 497 P.2d 138 (1972).

Before turning to the specific issues on appeal, some background on the necessity defense is deemed advisable. Necessity is a common-law defense recognized in some jurisdictions, while in others it has been adopted by statute. Several states which have no statute on the defense have not determined whether the common-law defense will be recognized. It has been referred to by various terms, including "justification," "choice of evils," or "competing harms." Depending upon the jurisdiction, various elements must be proven in order for a defendant to establish the defense. Section 3.02 of the Model Penal Code, adopted by a number of states and relied upon by the City, provides one formulation of the necessity defense:

"(1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:

(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and

(b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear." Model Penal Code § 3.02 (1962), 10 U.L.A. 477 (1962).

In his treatise on criminal law defenses, Professor Robinson explains the necessity defense another way:

"The lesser evils defense, sometimes called 'choice of evils' or 'necessity' or the general justification defense, is recognized in about one-half of American jurisdictions. It is perhaps the best illustration of the structure and operation of justification defenses generally. It...