City of Wichita v. Trotter
| Citation | 514 P.3d 1050 |
| Decision Date | 12 August 2022 |
| Docket Number | 122,007 |
| Parties | CITY OF WICHITA, Appellant, v. Arlando TROTTER, Appellee. |
| Court | United States State Supreme Court of Kansas |
Jan M. Jarman, assistant city attorney, argued the cause and was on the briefs for appellant.
Kevin J. Zolotor, of O'Hara & O'Hara LLC, of Wichita, argued the cause and was on the briefs for appellee.
Arlando Trotter appeals the decision of the Court of Appeals panel reversing the district court's dismissal of his two charges, which arose under Wichita Municipal Ordinances 3.06.030.A. and 3.30.030.A. Because we agree with the district court that W.M.O. 3.06.030.A. is overbroad and conclude that the panel erred by sua sponte reversing the district court's dismissal of Trotter's other charge, we affirm the district court and affirm in part and reverse in part the panel.
The procedural history of this case presents us with a limited factual record. In two separate municipal court cases, the City of Wichita charged Trotter with one violation each of W.M.O. 3.06.030.A. ("fail to file license application for after-hours") and W.M.O. 3.30.030.A. ("teen club/entertainment"). We know nearly nothing about the charges or proceedings that occurred before the Wichita Municipal Court. At any rate, after the municipal court found Trotter guilty in both cases, Trotter appealed to the district court, characterizing his convictions as arising under city ordinances "0306030A" and "0330030A." As a practical matter, Trotter's appeal had the effect of conditionally vacating his municipal convictions. City of Salina v. Amador , 279 Kan. 266, 274, 106 P.3d 1139 (2005).
On appeal before the district court, Trotter moved to consolidate both cases into one. He also moved to dismiss his charges, challenging the constitutionality of W.M.O. 3.06.030.A. The district court agreed, finding W.M.O. 3.06.030.A. unconstitutionally overbroad because it intrudes upon several "examples of Constitutionally protected behaviors." The district court then dismissed both charges, thus fully vacating Trotter's municipal convictions. Amador , 279 Kan. at 274, 106 P.3d 1139.
The City appealed. After rejecting Trotter's other constitutional claims, a panel of the Court of Appeals reversed the district court's conclusion that W.M.O. 3.06.030.A. was unconstitutionally overbroad. The panel also sua sponte reversed the district court's dismissal of the charge arising under W.M.O. 3.30.030.A., commenting that its "consideration of this issue is necessary to serve the ends of justice." City of Wichita v. Trotter , 60 Kan. App. 2d 339, 357, 494 P.3d 178 (2021).
Trotter moved for rehearing or modification, which the Court of Appeals denied. He then petitioned this court for review, which we granted.
Trotter challenges several aspects of the panel's decision. We find merit in his constitutional overbreadth argument and in his claim that the panel erred in reversing the district court's dismissal of his charge under W.M.O. 3.30.030.A., albeit not for the reasons he suggests. We deny Trotter's remaining claims as moot.
W.M.O. 3.06.030.A. is unconstitutionally overbroad.
Trotter disputes the panel's conclusions that W.M.O. 3.06.030.A. is not unconstitutionally overbroad and that it lacked jurisdiction to consider his arguments about the ordinance's alleged Fourth Amendment implications for overbreadth purposes. He has abandoned all other constitutional arguments.
The existence of appellate jurisdiction presents a question of law subject to unlimited review. State v. Clark , 313 Kan. 556, 560, 486 P.3d 591 (2021). The same is true of a challenge to the constitutionality of a statute or ordinance. State v. Boettger , 310 Kan. 800, 803, 450 P.3d 805 (2019) ; City of Wichita v. Edwards , 23 Kan. App. 2d 962, 964, 939 P.2d 942 (1997).
When First Amendment rights are affected, a party challenging a law as overbroad need not establish a personal injury arising from that law. State v. Williams , 299 Kan. 911, 919, 329 P.3d 400 (2014) (). Cf. Wenzel v. Bankhead , 351 F. Supp. 2d 1316, 1323 (N.D. Fla. 2004) (). Thus, the panel correctly determined that Trotter has standing to raise an overbreadth claim under the First Amendment.
The panel also correctly concluded that Trotter lacks standing to levy a Fourth Amendment challenge against W.M.O. 3.06.030.A. True, the panel approached this consideration from the perspective of a direct Fourth Amendment challenge rather than Trotter's true argument, which contends that W.M.O. 3.06.030.A. "is unconstitutionally overbroad because it infringes on the First Amendment when it requires one to waive her Fourth Amendment Rights in order to receive a license (permission) to exercise her First Amendment Rights." But we consider this a distinction without a difference as to standing. Trotter cites no authority extending the third-party standing approach beyond the domain of the First Amendment, and we have consistently held that Fourth Amendment rights " ‘are personal, and defendants may not vicariously assert them.’ " State v. Scheuerman , 314 Kan. 583, 593, 502 P.3d 502 (2022). Thus we affirm the panel's rejection of Trotter's claim as to the Fourth Amendment implications of the ordinance.
Constitutional principles
We turn now to the merits of Trotter's First Amendment overbreadth claim. Under the First Amendment to the United States Constitution, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. amend. I. Trotter's claim of overbreadth focuses on W.M.O. 3.06.030.A.’s impact on the First Amendment right of assembly. See De Jonge v. State of Oregon , 299 U.S. 353, 364, 57 S. Ct. 255, 81 L. Ed. 278 (1937) ().
All parties agree the ordinance is content neutral. But content neutrality does not immunize an ordinance from overbreadth scrutiny. Cf. Harmon v. City of Norman, Oklahoma , 981 F.3d 1141, 1148-54 (10th Cir. 2020) ().
A criminal statute may be unconstitutionally overbroad when it "makes conduct punishable which under some circumstances is constitutionally protected from criminal sanctions." Dissmeyer v. State , 292 Kan. 37, 43, 249 P.3d 444 (2011). "Where conduct and not merely speech is involved, the United States Supreme Court requires that ‘the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.’ " Williams , 299 Kan. at 920, 329 P.3d 400. Thus, because " ‘[a]lmost every law is potentially applicable to constitutionally protected acts,’ " a court will not find a law unconstitutionally overbroad unless the party challenging the law can show " ‘(1) the protected activity is a significant part of the law's target, and (2) there exists no satisfactory method of severing that law's constitutional from its unconstitutional applications.’ " Smith v. Martens , 279 Kan. 242, 253, 106 P.3d 28 (2005) ; see also Boettger , 310 Kan. at 803, 450 P.3d 805 (). Moreover, "[c]riminal statutes must be scrutinized with particular care ... those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application." City of Houston, Tex. v. Hill , 482 U.S. 451, 459, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987). Still, "[t]he overbreadth doctrine should be employed sparingly and only as a last resort." Martens , 279 Kan. at 253, 106 P.3d 28.
The Wichita after-hours establishment licensing scheme
The challenged ordinance, W.M.O. 3.06.030., provides:
Several definitions in W.M.O. 3.06.020. establish the ordinance's scope:
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