Petty v. City of El Dorado

• Decision Date: 09 March 2001
• Docket Number: No. 84,665.,84,665.
• Citation: 270 Kan. 847,19 P.3d 167
• Parties: MELISSA R. PETTY, Appellee/Cross-appellant, v. CITY OF EL DORADO, KANSAS, and MICHAEL G. COASH, Appellants/Cross-appellees.
• Court: Kansas Supreme Court

270 Kan. 847

19 P.3d 167

MELISSA R. PETTY, Appellee/Cross-appellant, v. CITY OF EL DORADO, KANSAS, and MICHAEL G. COASH, Appellants/Cross-appellees.

No. 84,665.

Supreme Court of Kansas.

Opinion filed March 9, 2001.

Michael G. Coash, of El Dorado, was on the brief for appellants/cross-appellees.

Darren K. Patterson, of El Dorado, argued the cause and was on the brief for appellee/cross-appellant. The opinion of the court was delivered by

LOCKETT, J.:

The City of El Dorado (City) appeals the district court's determination that the provision of a municipal diversion agreement requiring a defendant to serve time in the county jail was void because the City lacked statutory authority to require jail time as a condition of the diversion agreement. The defendant cross-appealed the district court's application of equitable estoppel and its finding that the entire diversion agreement was illegal and void and returning the parties to their preagreement status.

The City created a pretrial diversion program for first-time DUI offenders. The statutory eligibility requirements that govern acceptance into the program, and requirements that must be fulfilled by those accepted into the program, are discussed below. The City amended its diversion requirements, effective February 1, 1997, to include the condition that an individual granted diversion for DUI serve either 48 or 72 hours in the Butler County jail. The number of hours spent in the jail depends on the defendant's blood alcohol level at the time of arrest.

On August 15, 1998, Melissa Petty was charged in El Dorado Municipal Court with operating a motor vehicle under the influence of alcohol (DUI). Petty made a written application for acceptance into the City's DUI diversion program. On December 18, 1998, Petty signed a written diversion agreement with the City which required that she serve 48 hours in the Butler County jail within the subsequent 120 days.

On April 23, 1999, Petty filed for an injunction in the district court against the City, seeking a temporary restraining order and declaratory relief. In her petition for an injunction, Petty claimed the City had no statutory authority to require her to serve 48 hours in jail as condition of the diversion agreement. The district court granted the temporary restraining order and set the matter for hearing.

On August 6, 1999, at the hearing for a permanent injunction, the district court heard testimony and oral arguments. Petty testified that when she entered into the diversion agreement, she had intended to serve the 48 hours in jail as required by the agreement. Petty again contended the city attorney had no statutory authority to require jail time as a condition of the diversion agreement and requested that the City be enjoined from enforcing that condition. The City argued that (1) it had statutory authority to require jail time and (2) the doctrine of equitable estoppel precluded Petty from raising that issue.

The district judge in a memorandum opinion noted that the 1978 Kansas Special Legislative Committee on Corrections issued a report recommending the enactment of a district court pretrial diversion procedure substantially similar to the municipal diversion procedure. The district judge pointed out that the report indicated that the legislature's purpose in providing for diversion agreements was to offer the offender an alternative method of rehabilitation other than incarceration or probation, which will bring about the offender's future compliance with the law. Report on Kansas Legislative Interim Studies to the 1978 Legislature, Special Committee on Corrections, p. 48. The report also stated: "The Committee has examined the pretrial diversion approach and believes that such a program should be available in Kansas to reduce the number of persons committed to institutions, in those cases where diversion would be in the interests of justice and of benefit to the defendant and the community." (Emphasis added.) Report, pp. 48-49. The report further stated: "The Committee believes that a pretrial diversion mechanism should be available in Kansas to be used, in some cases, as an alternative to the traditional dispositions of incarceration or probation." (Emphasis added.) Report, p. 49.

Based on these findings, the district court enjoined the City from enforcing the jail time provision in the diversion agreement and then, following contract law, set aside the diversion agreement and returned the parties to their prediversion agreement status. The City appealed, claiming that the district judge's conclusions were erroneous. Petty cross-appealed the judge's order voiding the agreement. The case was transferred to this court pursuant to K.S.A. 20-3018(c).

Did the district court err in holding that the City did not have the authority to require jail time as a condition of diversion? If the City exceeded its statutory authority, does the doctrine of equitable estoppel apply to the diversion agreement? The issues presented are questions of law to be decided upon uncontroverted facts. Our standard of review is plenary and unlimited. See Matney v. Matney Chiropractic Clinic, 268 Kan. 336, 338-39, 995 P.2d 871 (2000).

Statutes

Municipal court diversion in a criminal case charging an alcoholrelated offense is the referral of a defendant to a supervised performance program prior to adjudication. K.S.A. 12-4413(c). A diversion agreement is the specification of formal terms and conditions which a defendant must fulfill in order to have the charges against the defendant dismissed. K.S.A. 12-4413(d).

K.S.A. 12-4416(a) provides requirements which must be included in every diversion agreement, namely: a waiver of all rights to counsel, a speedy arraignment, a speedy trial, and a trial by jury; (2) a stipulation of the facts upon which the charge is based and a provision that if the defendant fails to fulfill the terms of the diversion agreement further proceedings shall be conducted on the record of the stipulation of facts; (3) the payment of a fine or the performance of community service; (4) enrollment in and completion of an alcohol drug safety action or treatment program. Diversion agreements may include, but are not limited to: (1) the payment of court costs, restitution, and diversion costs; (2) residence in a specified facility; (3) maintenance of gainful employment; and (4) participation in programs offering medical, educational, vocational, social, and psychological services, corrective and preventive guidance, and other rehabilitative services.

The City points out that K.S.A. 12-4416 states that the diversion agreement may include a provision for residence in a specified facility. The City asserts that it is that provision that allows its city attorney to include a condition of time in jail, i.e., a specified residential facility. Petty argued to the district court and to this court that the legislature contemplated placement in a residential facility for education or rehabilitation, not time in jail—a punishment. Petty asserts that requiring a person to spend time in jail— as a condition of the diversion agreement violates the legislature's policy of diversion. The rules regarding statutory ambiguity state that if a statute is plain and unambiguous, the courts must give effect to the expressed statutory language. In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 7, 930 P.2d 1366 (1997). A statute is ambiguous when two or more interpretations can fairly be made. Sterling Drilling Co. v. Kansas Dept. of Revenue, 9 Kan. App.2d 108, 109, 673 P.2d 456 (1983),rev. denied 234 Kan. 1078 (1984). Two distinct interpretations of K.S.A. 12-4416 are advanced by the parties. Therefore, it is appropriate to consider legislative intent.

In State v. Booze, 238 Kan. 551, 712 P.2d 1253 (1986), the Booze court, in determining the legislative intent for sentencing a second offender, reviewed the legislative history of statutory diversion provisions, considered the nature of diversion agreements, and observed that a defendant entering into a diversion agreement could waive his or her constitutional right to due process. The Booze court deduced: "The only real difference between diversion and being sentenced as a first offender (K.S.A. 1983 Supp. 8-1567[c]) is the incarceration." 238 Kan. at 555. The Booze court concluded that a repeat violator of the DUI law was subject to sentence enhancement on a second offense regardless of whether the individual was sentenced to jail or received diversion for the first offense. Although the issue in Booze was not whether jail time could be part of a diversion agreement, the court's language assumes that time served in jail is antithetical to diversion. See State v. Clevenger, 235 Kan. 864, 683 P.2d 1272 (1984).

In State v. Wright, 54 Wash. App. 638, 774 P.2d 1265 (1989), the Washington court considered whether the Washington deferred prosecution statute, which is similar to the Kansas diversion statute, permitted a 10-day jail term as a condition of deferred prosecution. Noting that deferred prosecution is a creature of statute, the Washington court determined that the trial court's authority to impose conditions of deferred prosecution must be authorized by statute. 54 Wash. App. at 639-60. The Washington court noted that its legislature's stated intent in enacting...