Com. v. Foley
| Decision Date | 08 November 1990 |
| Docket Number | No. 89-SC-646-TR,89-SC-646-TR |
| Citation | 798 S.W.2d 947 |
| Parties | COMMONWEALTH of Kentucky, Appellant, v. F.C. "Cedar" FOLEY and Buford Murphy, Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
In this case we undertake the formidable task of deciding the constitutionality of KRS 119.205. In the trial court, the indictment against appellees was dismissed on the grounds that the statute was unconstitutional and the Commonwealth appealed from that order. Upon motion of the Commonwealth, this Court granted transfer.
Appellees Foley and Murphy were indicted for conspiracy to pay money to procure or influence a vote in violation of KRS 119.205. Prior to trial, appellees moved to dismiss the indictment on the grounds that the statute was vague, overbroad, and thus, unconstitutional. Reviewing a number of decisions from this court and various federal courts, the trial court held that the statute fails to provide "fair warning" to those upon whom it is intended to operate, permits "arbitrary treatment" of citizens, and prohibits "conduct which is constitutionally permissible."
As we begin the process of testing the constitutionality of this or any statute against a claim of vagueness or overbreadth, it should be reiterated that the decisions of this Court do not permit introduction of "limiting language" to avoid unconstitutionality.
"We reject the argument that a criminal statute facially unconstitutional can be 'authoritatively construed' by the courts to render it constitutional, if this is taken to mean the court can introduce an additional concept not present in the statute as written by the Legislature." Musselman v. Commonwealth, Ky., 705 S.W.2d 476, 478 (1986).
While our decisions require construction in favor of constitutionality (Sasaki v. Commonwealth, Ky.App., 485 S.W.2d 897 (1972); Fann v. McGuffey, Ky.App., 534 S.W.2d 770 (1975)), an oft-quoted admonition from Hatchett v. City of Glasgow, Ky., 340 S.W.2d 248 (1960), remains a guiding principle:
"But where a statute on its face is intelligible, the courts are not at liberty to supply words or insert something or make additions which amount, as sometimes stated, to providing for a casus omissus, or cure an omission, however just or desirable it might be to supply an omitted provision." Id. at 251.
Therefore, it is of no moment that the conduct alleged in the indictment could be constitutionally prohibited and criminalized. The statute must be tested on the basis of what is said rather than what might have been said. Musselman v. Commonwealth, supra; and Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).
We begin our analysis by quoting KRS 119.205 as enacted by the General Assembly. The statute says:
(1) Any person who receives a bribe for his vote at an election, or for his services or influence in procuring a vote at an election, shall be fined not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000) or be confined in the penitentiary for not less than one (1) nor more than five (5) years, or both, and shall be excluded from office and suffrage upon conviction.
(2) Any person who bribes, conspires to bribe another or assists to bribe another shall be fined not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or be confined in the penitentiary for not less than one (1) year nor more than five (5) years, or both, and upon conviction shall be excluded from office and suffrage.
(3) 'Bribe,' as used in this section, means any reward, benefit or advantage, present or future, to the person influenced or intended to be influenced, or to another at his instance, or the promise of such reward, benefit or advantage; it includes money or other thing of value given or lent to be wagered on the result of an election, or the promise thereof, or a bet with another that such other will vote for a named candidate, and the gift or promise of a share in any such bet made or to be made.
(4) Any person who received money or thing of value to be used for the purpose of procuring or influencing a vote shall be deemed to have been bribed.
(5)(a) Any candidate or person working on behalf of any candidate who knowingly makes payment to another or any person who receives payment from such candidate, or person for services rendered or goods furnished, including advertising, in excess of that normally charged for such services or goods, shall be guilty of a Class B misdemeanor.
(b) No candidate or committee, or any person on their behalf, shall pay any person more than the reasonable value thereof for transporting voters to the polls on the day of an election. All such payments shall be by check and no portion of such payment shall be paid to any of the persons transported. Any person found guilty of a violation of this subsection shall be guilty of a Class B misdemeanor.
Paragraphs (1) and (2) of the statute present no apparent difficulty as these provisions merely impose criminal sanctions upon all parties to the act of bribery. It could not be seriously contended that the Commonwealth is without authority to prohibit the outright buying and selling of votes. As the Supreme Court said in Brown v. Hartlage, 456 U.S. 45, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982): "No body politic worthy of being called a democracy entrusts the selection of leaders to a process of auction or barter." 456 U.S. at 54, 102 S.Ct. at 1529. Indeed, Sections 150 and 151 of the Constitution of Kentucky direct the General Assembly to enact laws regulating elections and prohibiting improper practices.
Next we focus our attention on KRS 119.205(3). This section prohibits giving any reward, benefit or advantage, including money or other thing of value, to a person influenced or intended to be influenced. Under a literal reading of this section, a virtually endless catalog of campaign practices is proscribed. The distribution of small campaign tokens with the candidate's name and likeness is certainly an accepted practice, but surely such tokens are things of value which are intended to influence voters. The promises made by candidates for office range from simple promises of good government to promises of roads and employment to promises of money. While it may appear absurd to suggest that a candidate's promise of "good government if elected" would subject him to prosecution under this statute, as candidates' campaign promises become more specific, the more plausible it becomes to suggest that the candidate promised to confer a benefit or advantage with the intention of influencing a voter in violation of the Act. At one extreme, such a promise may be harmless rhetoric, and at the other extreme, an overt act of bribery. Lying between those extremes, however, is a vast middle ground which is subject to characterization as lawful or unlawful in the discretion of a prosecutor or grand jury.
Upon review of the next section of the Act, KRS 119.205(4), it is apparent that this is redundant, to a great extent, to sections (1) and (3) of the act. Section (1) makes it a crime to receive a bribe and section (3) broadly defines the term "bribe." Nevertheless, section (4) declares that "any person who receives money or other thing of value ... for the purpose of procuring or influencing a vote shall be deemed to have been bribed." The mere fact of redundancy standing alone would not be grounds for constitutional attack, but to the extent section (4) is subject to arbitrary interpretation, it suffers from the same constitutional maladies found in section (3). Moreover, it would be entirely possible to construe section (4), and perhaps earlier sections as well, to prohibit perfectly legitimate business persons from accepting money to be used for the purpose of political advertising. The vast majority of all election expense is for the purchase of television, radio and newspaper advertising. Substantial sums are also spent on other forms of advertising such as billboards and printing of various kinds. That such expenditures are for the purpose of procuring or influencing votes could not be denied, but under section (4), the recipient of such funds, regardless of the value which may have been given or the services rendered in return, "shall be deemed to have been bribed."
KRS 119.205(5)(a) and (b) introduce the concept of excessive payment by prohibiting any payment "in excess of that normally charged for such services or goods" and "more than the reasonable value thereof." In most instances, candidates and their supporters have no way of determining what is excessive payment or the reasonable value of services rendered. Candidates have little expertise and less time to bargain in the marketplace over charges for goods and services, including advertising, which they need to conduct a campaign. Therefore, these phrases are nearly incapable of application to a particular set of facts, and it is no answer to say that the reasonableness of such charges can be judged by hindsight or that candidates will know what is or is not reasonable.
In recent years the use of professional campaign consultants has become a widespread and accepted practice. Just as attorneys' fees range from relatively modest to very expensive, so too is the range of fees charged by such consultants. Likewise, many candidates employ paid staff persons for clerical, transportation and other services. Under the language employed in sections (5)(a) and (b), every such expenditure of funds would be subject to the reasonableness requirement and only a petit jury could finally determine whether such was met.
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