Dissmeyer v. State , 102,786.
| Decision Date | 08 April 2011 |
| Docket Number | No. 102,786.,102,786. |
| Citation | 249 P.3d 444,292 Kan. 37 |
| Parties | David A. DISSMEYER, Lester L. Lawson, and Terry Mitchell, Appellants,v.STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
1. While a vague statute leaves persons of common intelligence to guess at its meaning, an overbroad statute makes conduct punishable which under some circumstances is constitutionally protected.
2. A successful overbreadth challenge can be made only when the protected activity is a significant part of the law's target and there exists no satisfactory method of severing that law's constitutional from its unconstitutional applications.
3. The overbreadth doctrine should be employed sparingly and only as a last resort.
4. K.S.A.2010 Supp. 74–8702(g), defining gray machines, in combination with its enforcement provisions, K.S.A.2010 Supp. 74–8750(d) and K.S.A.2010 Supp. 74–8761, make it unlawful to own or operate a broad spectrum of property that does not relate to a legitimate government interest in controlling gambling. Those statutory provisions, as they relate to gray machines, are overbroad and unconstitutional.
Rebecca S. Rice, of Rice Law Office, of Lindsborg, argued the cause and was on the brief for appellant.Patrick J. Hurley, deputy attorney general, argued the cause, and Tim J. Riemann, assistant attorney general, and Steve Six, attorney general, were on the brief for appellee.
Plaintiffs David A. Dissmeyer, Lester L. Lawson, and Terry L. Mitchell appeal from a district court order in a declaratory judgment action seeking to restrain enforcement and to clarify Kansas statutes regulating certain gaming machines.
During the 2007 legislative session, the Kansas Legislature passed and the Governor signed S.B. 66, the Kansas Expanded Lottery Act. The law authorized operation of certain gaming facilities, electronic gaming machines, and other lottery games at certain designated locations. The Act became effective April 19, 2007. L.2007, ch. 110. It is codified at K.S.A.2010 Supp. 74–8733 et seq.
This court upheld the constitutionality of the Act as it related to ownership and operation of the lottery in State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 186 P.3d 183 (2008). The present appeal challenges the portions of the Act defining “gray machines” and outlawing ownership of and public access to such machines.
On March 21, 2008, the executive director of the Kansas Lottery sent a letter to all lottery retailers warning them that the Kansas Expanded Lottery Act prohibited participating retailers from owning or operating gray machines. The letter stated that the Kansas Racing and Gaming Commission had received many calls from across the state regarding gray machines. The letter reminded recipients that the Commission could not give them legal advice and informed them that the Commission was “working with law enforcement officials to determine which machines are illegal.”
The plaintiffs own or lease amusement game machines in Wyandotte County, Kansas. The pleadings do not reveal the precise nature of their machines. On October 16, 2008, they filed a declaratory judgment action seeking a determination that K.S.A.2010 Supp. 74–8702 and K.S.A.2010 Supp. 74–8761 are unconstitutional. They also sought injunctive relief barring enforcement of those statutes. The district court granted the State's motion for summary judgment and found that the statutes were not unconstitutionally vague and that injunctive relief was therefore not appropriate. This court assumed jurisdiction over the plaintiffs' appeal from that judgment under K.S.A.2010 Supp. 60–2102(b)(2).
K.S.A.2010 Supp. 74–8702(g) sets out the definition of gray machines. K.S.A.2010 Supp. 74–8750(d) authorizes the executive director of the Kansas Lottery or the executive director of the Kansas Racing and Gaming Commission to confiscate any gray machine that does not comply with the requirements of the Expanded Lottery Act. K.S.A.2010 Supp. 74–8761 makes it a severity level 9, nonperson felony to place in operation or to continue to have in place any gray machine for use by members of the public in any location in this state.
The plaintiffs challenge the constitutionality of this statutory scheme. The constitutionality of a statute is a question of law to which this court applies a de novo standard of review. Tolen v. State, 285 Kan. 672, 673, 176 P.3d 170 (2008).
The district court elected to incorporate the definition of “gambling device” from K.S.A. 21–4302(d). K.S.A. 21–4307 makes possession of a gambling device illegal. The district court concluded that incorporating the criminal code renders the Chapter 74 statutes sufficiently clear to pass constitutional muster.
K.S.A. 21–4302(d) defines gambling devices for purposes of the criminal code. It does not address gray machines, and the language that it employs in its definitions does not include linking devices to a lottery central computer system or simulating games played on authorized gaming machines. It also does not address the latent potential for turning a nongambling device into a gambling device. As a consequence, it does not clarify or limit the definition of gray machines contained in the Kansas Expanded Lottery Act.
The plaintiffs argue that there are only two ways of looking at the statutory provisions in question: Either the statute is plain and unambiguous on its face, and it therefore applies to such a broad array of devices that it can have no rational basis, or the statute is vague and ambiguous and, therefore, violates due process by failing to give parties notice that particular conduct is unlawful.
A statute that either requires or forbids the doing of an act in language that is so vague that persons of common intelligence must guess at its meaning and will differ as to its application violates the Fourteenth Amendment to the United States Constitution and is thus void for vagueness. State v. Richardson, 289 Kan. 118, 124, 209 P.3d 696 (2009). The statute at issue is not unconstitutionally vague, and it does not require incorporation of the definition of gambling devices contained in K.S.A. 21–4302(d).
K.S.A.2010 Supp. 74–8702(g) defines gray machines as follows:
“ ‘Gray machine’ means any mechanical, electro-mechanical or electronic device, capable of being used for gambling, that is: (1) Not authorized by the Kansas lottery, (2) not linked to a lottery central computer system, (3) available to the public for play or (4) capable of simulating a game played on an electronic gaming machine or any similar gambling game authorized pursuant to the Kansas expanded lottery act.”
The syntax of K.S.A.2010 Supp. 74–8702(g) implies the word “or” between each of the four subcategories. See, e.g., State v. Bonner, 290 Kan. 290, Syl. ¶ 4, 227 P.3d 1 (2010); State v. Johnson, 289 Kan. 870, 879, 218 P.3d 46 (2009); State v. Wiegand, 275 Kan. 841, 845–46, 69 P.3d 627 (2003) ().
In order to constitute a gray machine, the device must therefore be mechanical, electro-mechanical, or electronic and capable of being used for gambling. It must also (1) not be authorized by the Kansas Lottery or (2) not be linked to a lottery central computer or (3) be available to the public for play or (4) be capable of simulating an authorized gambling game.
Although they are broad in scope, the statutory guidelines are susceptible to precise application to various devices. It is possible to examine any device, a home computer for example, and determine whether it fits the statutory definition. A home computer is a gray machine because it is electronic, it is capable of being used for gambling, and it is capable of simulating an authorized gambling game. In addition, it is not authorized by the Kansas Lottery, it is not linked to a lottery central computer, and it may be available to the public for play. The statute is not unconstitutionally vague.
We note as an aside that it is puzzling why the Kansas Racing and Gaming Commission would feel compelled to work with law enforcement officials “to determine which machines are illegal.” Unless the statute is vague, it should be clear to businesses and individuals of common intelligence which devices violate the law. Perhaps the Commission seeks to determine which machines are illegal because, under the statutory definition, few or no devices, tools, or machines are legal, a topic that we now subject to overbreadth analysis.
“ [ State v.] Whitesell, 270 Kan. 259, Syl. ¶ 6
.” Smith v. Martens, 279 Kan. 242, 253, 106 P.3d 28 (2005).
Prior to enactment of the Expanded Lottery Act statutory scheme, it was the actual use to which a device was put that determined whether it was illegal.
State v. Durst, 235 Kan. 62, 64, 678 P.2d 1126 (1984).
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