Com. v. Kash

• Decision Date: 21 November 1997
• Docket Number: 96-CA-1215-MR,Nos. 96-CA-1214-M,s. 96-CA-1214-M
• Citation: 967 S.W.2d 37
• Court: Kentucky Court of Appeals
• Parties: COMMONWEALTH of Kentucky, Appellant, v. E.T. KASH, Appellee. COMMONWEALTH of Kentucky, Appellant, v. Rocky HIGGINS, Appellee.

Page 37

967 S.W.2d 37

COMMONWEALTH of Kentucky, Appellant, v. E.T. KASH, Appellee.

COMMONWEALTH of Kentucky, Appellant, v. Rocky HIGGINS, Appellee.

Nos. 96-CA-1214-MR, 96-CA-1215-MR.

Court of Appeals of Kentucky.

Nov. 21, 1997.

Discretionary Review Denied

June 10, 1998.

A.B. Chandler, III, Attorney General, Michael A. Wright, Assistant Attorney General, Frankfort, for Appellant.

Susan J. Balliet, Prospect, for Appellee Rocky Higgins.

Michael F. Eubanks, Richmond, for Appellee E.T. Kash.

Before WILHOIT, C.J., ¹ and ABRAMSON and DYCHE, JJ.

OPINION

ABRAMSON, Judge.

The Commonwealth of Kentucky appeals an order of the Lee Circuit Court dismissing the indictments of Rocky Higgins and E.T. Kash for the offense of wrongful voter registration under KRS 119.025. Finding the circuit court erred in holding the statute unconstitutionally vague, we reverse and remand.

In February 1993, E.T. Kash was campaigning for election as the county judge executive in Lee County. In the course of the campaign, Kash actively attempted to have local residents registered to vote in the May 1993 election. While at a private home where individuals were assisted in registering to vote, Rocky Higgins signed a voter registration form. There is some indication in the record that Higgins later voted in the May 1993 election, which Kash won. In November 1994, a Lee County resident wrote a letter to the Kentucky Attorney General alleging that Higgins had been assisted in registering to vote. The letter indicated that Higgins was a convicted felon, and that Kash knew this when he assisted Higgins in registering. The Attorney General's Office directed the letter to the State Board of Elections, which contacted the Lee County Commonwealth's Attorney about initiating an investigation under KRS 117.245. In December 1994, the State Board of Elections determined that Higgins had been ineligible to vote in the election because he was a convicted felon, and that he had not had his voting rights restored through an executive pardon as required by Section 145 of the Kentucky Constitution. The investigation revealed that Higgins had been convicted of felony burglary and theft offenses in May 1987. At some point, the Attorney General's Office assumed control of the investigation.

In February 1995, a Lee County Grand Jury was convened to consider evidence against Higgins and Kash for alleged election law violations. After hearing testimony from several witnesses, the Grand Jury returned separate one-count indictments in June 1995 against Higgins and Kash for violation of KRS 119.025, a class D felony. The indictment of Higgins alleged that on or about February 25, 1993, Higgins committed the offense of wrongful registration "when he knowingly and/or fraudulently caused himself to be registered to vote when he knew he was not legally entitled to vote." Similarly, the indictment of Kash stated that on or about February 25, 1993, Kash committed the offense of wrongful registration "when he knowingly and/or fraudulently aided, abetted, counselled and/or advised Rocky L. Higgins in registering to vote when he knew that Rocky L. Higgins was not legally entitled to vote." The indictments were amended subsequently on an oral motion granted by the circuit court to substitute the word "register" for the last word "vote."

On March 1, 1996, Higgins filed a motion to dismiss the indictment on grounds that KRS 119.025 was unconstitutionally vague. At a hearing on the motion to dismiss, Kash joined in the motion and subsequently filed his own written motion and memorandum challenging the constitutionality of KRS 119.025. After receiving a written response from the Commonwealth, the circuit court issued a four-page order finding that KRS 119.025 was unconstitutionally vague and dismissing the indictments against Higgins and Kash. The Commonwealth appealed from the dismissal of each indictment.

THE CHALLENGED STATUTE AND RELATED CONSTITUTIONAL AND

STATUTORY PROVISIONS

The challenged statute, KRS 119.025, states in its entirety:

Wrongful registration.--Any person who knowingly or fraudulently causes himself to be registered in more than one (1) precinct, or to be registered more than once, or in a precinct other than the one in which he is a legal voter, or who registers under any name other than his real name, or who gives a false address, or who in any manner causes himself to be registered when he is not legally entitled to register, or who makes a false oath as to his ability to read or write, or who knowingly or fraudulently aids, abets, counsels or advises in the commission of any such act, shall be subject to the penalties prescribed for Class D felonies.

While KRS 119.025 sets out several specific acts that would constitute wrongful registration, it also contains the general phrases "who in any manner causes himself to be registered when he is not legally entitled to register ..., or who knowingly or fraudulently aids, abets, counsels or advises in the commission of any such act...." Because the facts of this case do not involve the specific examples enumerated in the statute, prosecution was based on the general language.

To fully understand the wrongful registration provision, two other statutes, KRS 116.045 and KRS 116.025, as well as Sections 145 and 147 of the Kentucky Constitution must be considered. ² Collectively these provisions deal with the qualifications for registration and voting in the Commonwealth. Taken together these provisions reveal the close relationship between registration and voting, with registration facilitating the integrity of the voting and election process. In Coffey v. Anderson, Ky., 371 S.W.2d 624, 626 (1963), the Court stated that Section 145 of the Kentucky Constitution must be read in pari materia with Section 147 to determine the qualifications to vote. It held that "[b]y force of [Ky.] Const. § 147, registration is a qualification or condition precedent of equal dignity with the age, residence, and other qualifications in [Ky.] Const. § 145." Id. Registration is "the method of proof by a public record" for ascertaining and identifying qualified voters in each precinct. See Bd. of Registration Comm'rs v. Campbell, 251 Ky. 597, 65 S.W.2d 713, 718 (1933). As such, "it is part of the machinery of elections." Id.

THE CONSTITUTIONAL CHALLENGES

In his motion to dismiss, Higgins maintained that KRS 119.025 was unconstitutionally vague as applied to his situation. Kash argued that KRS 119.025 was facially unconstitutional for vagueness and overbreadth. The void-for-vagueness doctrine emanates from the due process provisions of the United States and Kentucky Constitutions. Raines v. Commonwealth, Ky.App., 731 S.W.2d 3, 4 (1987). To survive vagueness analysis a statute must provide "fair notice" of prohibited conduct and contain "reason-ably clear" guidelines to thwart "arbitrary and discriminatory" enforcement. Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605, 611-12 (1974). The overbreadth doctrine has its source in the First Amendment of the United States Constitution and in Kentucky is applied by analogy to rights protected by our state's constitutional counterparts to the First Amendment. Commonwealth v. Ashcraft, Ky.App., 691 S.W.2d 229 (1985). The essence of overbreadth was summarized in Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830, 839 (1973):

It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.

In Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), the United States Supreme Court described the elements of a facial challenge to a law based on overbreadth and vagueness.

In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law.

Id. at 494-95, 102 S.Ct. at 1191-92. Thus while a vagueness challenge focuses squarely on the conduct of the party before the court, the overbreadth doctrine developed to allow parties to challenge a statute drafted so broadly that it may inhibit the First Amendment rights of third parties. Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796-801, 104 S.Ct. 2118, 2124-26, 80 L.Ed.2d 772, 781-85 (1984) ("[I]n short, there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.") See also City of Houston v. Hill, 482 U.S. 451, 458-59, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398, 410 (1987) (criminal statutes to be "scrutinized with particular care"; there must be a substantial amount of constitutionally protected conduct prohibited for overbreadth doctrine to apply, not merely the specter of a single impermissible application).

Kentucky courts have employed vagueness and overbreadth analysis in examining various state laws. See, e.g., State Bd. for Elementary and Secondary Ed. v. Howard, Ky., 834 S.W.2d 657 (1992) (holding that parts of ...