In re A.B.

• Decision Date: 02 April 2021
• Docket Number: No. 122,685,122,685
• Parties: In the MATTER OF A.B.
• Court: Kansas Supreme Court

484 P.3d 226

In the MATTER OF A.B.

No. 122,685

Supreme Court of Kansas.

Opinion filed April 2, 2021.

Richard E. James, county attorney, argued the cause and was on the brief for appellant State of Kansas.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the brief for appellee A.B.

The opinion of the court was delivered by Biles, J.:

This controversy arises after the State charged a then 14-year-old girl with aggravated indecent liberties with a child for having sexual relations with a then 14-year-old boy. The State had tried first to prosecute her for a less severe crime under K.S.A. 2020 Supp. 21-5507, commonly known as the "Romeo and Juliet" statute, but that charge was dismissed because she is a few months younger than the boy. See In re E.R. , 40 Kan. App. 2d 986, 988, 197 P.3d 870 (2008) (holding individual charged under K.S.A. 21-3522, the precursor statute to K.S.A. 2020 Supp. 21-5507, must be "under age 19 and older than the child by some period less than 4 years" to be adjudicated a juvenile offender). The State then initiated juvenile proceedings against the girl under the more severe statute, while the older boy was convicted of the less severe offense. Faced with the prospect of disparate outcomes between the two, the district court declared the aggravated indecent liberties statute unconstitutional, holding it was vague, overbroad, and in violation of the girl's equal protection rights as applied. The State now appeals.

We hold the aggravated indecent liberties statute is not vague or overbroad for the reasons advanced in this case. We also hold the statute does not violate equal protection as applied because the underlying premise for that claim is the Court of Appeals ruling in E.R ., which incorrectly interpreted the precursor to K.S.A. 2020 Supp. 21-5507 to require the offender be older than the other juvenile. The statute imposes no such limitation. We overrule E.R. and remand the case to the district court for additional proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2019, a Clay County Sheriff's Deputy investigated a juvenile rape that allegedly occurred two years earlier. The suspect was a juvenile male, T.C., and the alleged victim was K.G., a juvenile female. The deputy interviewed her, asking if she told anyone about the incident around the time it had occurred. She mentioned A.B., another juvenile female and the defendant in this appeal. The deputy interviewed A.B., who acknowledged she also had sex with T.C. That prompted the State to initiate proceedings against her.

The State first charged A.B. as a juvenile with unlawful voluntary sexual relations, a severity level 8 person felony. See K.S.A. 2020 Supp. 21-5507. But the district court dismissed the case, relying on E.R. , which held the statute requires the offender to be older than the victim. E.R. , 40 Kan. App. 2d at 988, 197 P.3d 870. The district court noted A.B. was younger than T.C., so K.S.A. 2020 Supp. 21-5507 could not apply to her based on what was then binding appellate court precedent.

Rather than appeal that dismissal, the State recharged A.B. with the more severe crime of aggravated indecent liberties with a child, a severity level 3 person felony. See K.S.A. 2020 Supp. 21-5506(b)(1). The charging document alleges:

"That between the 1st day of May, 2015, and the 31st day of December, 2015, [A.B.], within Clay County, Kansas, did then and there being unlawfully and willfully, engage in sexual intercourse with a child who was 14 years of age but less than 16 years of age at the time of the act, to-wit: engaged in sexual intercourse with T.C., d/o/b 2001, AGGRAVATED INDECENT LIBERTIES WITH A CHILD, in violation of K.S.A. 21-5506(b)(1), an Severity Level 3 Person felony when committed by an adult."

T.C.'s date of birth is January 9, 2001. A.B.'s date of birth is September 21, 2001. During the dates alleged in the charge, T.C. "would have been between the ages of 14 years and 4 months and 14 years and 11 months of age," and A.B. "would have been between the ages of 13 years and 8 months and 14 years and 3 months of age." According to the complaint, T.C. was the child victim and A.B. the offender.

A.B. challenged K.S.A. 2020 Supp. 21-5506(b)(1)'s constitutionality. She claimed it was: (1) too vague because "it leaves persons of common intelligence to guess at whether it proscribes a person who is younger than the 'child' from engaging in sexual activities with the older child"; (2) overbroad because it "is designed to infringe on the right of privacy of young teenagers by preventing them from engaging in consensual sexual intercourse"; and (3) in violation of A.B.'s equal protection rights as applied to her because she could only be treated more harshly than T.C. based on her age and E.R .

The district court agreed with each claim, although it failed to elaborate on its reasoning. In an aside, the court commented: "I will expect the State to appeal ... so hopefully the Court of Appeals or the Supreme Court can address this issue and give us some direction for the sake of being fair to everybody involved in such activities."

The State directly appeals to this court. Jurisdiction is proper. See K.S.A. 2020 Supp. 38-2382(c) (specifying that "[p]rocedure on appeal" under revised Kansas Juvenile Justice Code "shall be governed by article 21 of chapter 60 of the Kansas Statutes Annotated"); K.S.A. 60-2101(b) (Supreme Court has jurisdiction over cases directly appealed from district court; "[a]n appeal from a final judgment of a district court in any civil action in which a statute of this state ... has been held unconstitutional shall be taken directly to the supreme court").

ANALYSIS

The straightforward issue is K.S.A. 2020 Supp. 21-5506(b)(1)'s constitutionality, although the analysis cannot escape the factual context and disparity created by E.R ., which prevented the State from prosecuting A.B. under the less severe offense of K.S.A. 2020 Supp. 21-5507. See State v. Limon , 280 Kan. 275, 276, 122 P.3d 22 (2005) ("When the Romeo and Juliet statute applies, prison terms are shorter and other consequences, such as postrelease supervision periods and sex offender registration requirements, are less harsh than when general rape, sodomy, and lewd touching statutes apply.").

Standard of review

The standard of review for all three constitutional issues is well known:

"Whether a statute is constitutional is a question of law subject to unlimited review. This court presumes that statutes are constitutional and resolves all doubts in favor of passing constitutional muster. If there is any reasonable way to construe a statute as constitutionally valid, this court has both the authority and duty to engage in such a construction. [Citations omitted.]" State v. Bollinger , 302 Kan. 309, 318, 352 P.3d 1003 (2015).

A.B.'s vagueness claim

A.B. asserts K.S.A. 2020 Supp. 21-5506(b)(1) is unconstitutionally vague by failing to clarify whether a younger child engaged in sexual intercourse with an older child can be prosecuted under its terms. In her view, the Legislature intended only the older child to be the offender in that circumstance.

The test to determine whether a criminal statute is unconstitutionally vague is typically stated as follows:

"A statute is unconstitutionally vague if it fails to give adequate warning of the proscribed conduct, that is to say, that it ' "fails to provide a person of ordinary intelligence fair notice of what is prohibited." ' A statute is also unconstitutionally vague if it fails to protect against arbitrary enforcement. Violation of either aspect of these predictability requirements is grounds for invalidating a statute.

"Thus, the test to determine whether a criminal statute is so vague as to be unconstitutional entails two related inquiries: (1) whether the statute gives fair warning to those potentially subject to it, and (2) whether it adequately guards against arbitrary and unreasonable enforcement. 'At its heart the test for vagueness is a commonsense determination of fundamental fairness.' [Citations omitted.]" Bollinger , 302 Kan. at 318, 352 P.3d 1003.

During oral argument to this court, A.B.'s counsel clarified the vagueness challenge derives from the statute's application to her, as opposed to a general facial argument. We approach the argument from that perspective.

But we must first note an issue preservation problem because A.B.'s claim to the district court was limited to the fair-warning prong. She claimed: K.S.A. 2020 Supp. 21-5506 "leaves persons of common intelligence to guess at whether it proscribes a person who is younger than the 'child' from engaging in sexual activities with the older child." Yet in her appellate brief, she tries to reach further by asserting: "In [her] case, it is the second prong of the test that is applicable and revealed as a violation of Due Process by the actions of the prosecutor." And for that argument, she claims "the enforcement of [ K.S.A. 2020 Supp. 21-5506 and K.S.A. 2020 Supp. 21-5507 ] is subjective to the whims of the prosecutor" as evidenced by the series of the charges alleged against her by the State.

The fair-notice prong and the arbitrary-enforcement prong are different. See State v. Harris , 311 Kan. 816, Syl., 822, 467 P.3d 504 (2020) (declaring K.S.A. 2019 Supp. 21-6304 [c][1] is unconstitutionally vague not because of the first prong—"[a] pocketknife is a knife. People of ordinary intelligence are on notice as to what conduct the statute restricts, and the demands of fundamental fairness are met."—but because of the second prong—"it fails to provide an explicit and objective standard of enforcement"). And presuming the district court adopted the only argument A.B. advanced to it, i.e., the fair-notice prong, an arbitrary-enforcement claim was not before it. The problem with this, of course, is that the newly raised second-prong theory involves factual assertions, such as how prosecutors supposedly...