Smith v. Martens

• Decision Date: 18 February 2005
• Docket Number: No. 91,827.,91,827.
• Citation: 279 Kan. 242,106 P.3d 28
• Parties: BECKY SMITH, Appellee, v. PHIL MARTENS, Appellant.
• Court: Kansas Supreme Court

279 Kan. 242

106 P.3d 28

BECKY SMITH, Appellee, v. PHIL MARTENS, Appellant.

No. 91,827.

Supreme Court of Kansas.

Opinion filed February 18, 2005.

Jonathan L. Laurans, of Kansas City, Missouri, argued the case and was on the brief for appellant.

Scott C. Long, of McCormick, Adam & Long, P.A., of Overland Park, argued the cause, and Michael W. Lucansky, of Law Offices of Michael W. Lucansky, of Overland Park, was with him on the brief for appellee.

The opinion of the court was delivered by

DAVIS, J.:

Becky Smith filed an action under the civil Protection from Stalking Act (Act), K.S.A. 2003 Supp. 60-31a01 et seq., seeking a protective order against her former husband, Phil Martens. The district court ruled that the Act was constitutional, issued a 1-year protection from stalking order (PSO), and awarded Smith $5,000 in attorney fees. Martens appeals, raising numerous issues.

The PSO issued by the district court expired on November 24, 2004, rendering all issues raised in this appeal moot. Before the case was argued by the parties on December 1, 2004, this court, by order dated October 26, 2004, advised the parties to respond as to whether Martens' claims regarding the protective order should be dismissed as moot. Martens' attorney acknowledged that all matters were moot but emphasized that a controversy remained regarding the attorney fees granted to Smith by the district court, and he further emphasized that the issue of the constitutionality of the Act was a matter of statewide interest and importance and was a question likely to occur in the future. Martens has urged this court to address the issues raised by his appeal.

"The general rule is that an appellate court does not decide moot questions or render advisory opinions. The mootness doctrine is one of court policy which recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive."

"An appellate court may sometimes elect to entertain issues which, although moot, are subjects of real controversy and include issues of statewide interest and importance. Where a particular issue, although moot, is one capable of repetition and one of public importance, an appellate court may consider the appeal and render an opinion." Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, Syl. ¶ ¶ and 2, 912 P.2d 716 (1996).

The constitutionality of the Act, on its face, is a matter of public importance capable of repetition. We therefore elect to entertain this issue. The remaining issues consisting of the constitutionality of the Act as applied, evidentiary issues, and an issue involving the trial court's issuance of an injunction are moot. Any judgment issued by this court on all but the attorney fees question would not be enforceable because of the lapse of time, and the failure to address such issues would not affect rights vital to the parties. Our review of the record furthers satisfies this court that the question of attorney fees was properly handled by the trial court. Thus, all issues except the constitutionality of K.S.A. 2003 Supp. 60-31a01 et seq., are answered. Since we have elected not to address the other issues and the question of attorney fees is so intimately connected with those issues, we dismiss the question of attorney fees noting that this issue was thoroughly considered by the district court.

1. Constitutionality of K.S.A. 2003 Supp. 60-31a01 et seq.

Martens contends that K.S.A. 2003 Supp. 60-31a01 et seq., is both unconstitutionally vague on its face and overbroad. He also contends that the Act, specifically K.S.A. 2003 Supp. 60-31a02, is vague as applied to him, but that issue has been dismissed by this court as moot.

"Whether a statute is unconstitutionally vague or overbroad is a question of law over which this court has unlimited review. The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond reasonable doubt." State v. Whitesell, 270 Kan. 259, Syl. ¶ 1, 13 P.3d 887 (2000).

A. Vagueness

"A criminal statute is unconstitutionally vague and indefinite unless its language conveys a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice. The determination of whether a criminal statute is unconstitutionally vague involves a second inquiry of whether the law adequately guards against arbitrary and discriminatory enforcement. When making either inquiry, the court should bear in mind that the standards of certainty in a statute punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement." State v. Bryan, 259 Kan. 143, Syl. ¶ 2, 910 P.2d 212 (1996).

Martens argues that objectionable language identified by this court in the criminal stalking statute, K.S.A. 2003 Supp. 21-3438, is still contained in the Act, K.S.A. 2003 Supp. 60-31a01 et seq., rendering the civil scheme unconstitutionally vague on its face. Resolution of this argument is accomplished by first examining the history of the criminal stalking statute and its relevant case law in conjunction with the civil stalking Act and its corresponding legislative history at issue in this case.

Criminal Stalking Statute and Case Law

The criminal stalking statute, K.S.A. 2003 Supp. 21-3438, was enacted in 1992 and has been amended five times. See L. 1992, ch. 298, sec. 95; L. 1993, ch. 291, sec. 253; L. 1994, ch. 348, sec. 13; L. 1995, ch. 251, sec. 10; L. 2000, ch. 181, sec. 5; L. 2002, ch. 141, sec. 10. Relevant to this case, K.S.A. 1994 Supp. 21-3438 provided:

"(a) Stalking is an intentional and malicious following or course of conduct directed at a specific person when such following or course of conduct seriously alarms, annoys or harasses the person, and which serves no legitimate purpose.

. . . .

"(d) For the purposes of this section, `course of conduct' means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose and which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. Constitutionally protected activity is not included within the meaning of `course of conduct.'" (Emphasis added.)

In Bryan, this court found a portion of the K.S.A. 1994 Supp. 21-3438 criminal stalking statute unconstitutionally vague because it used the terms "alarms," "annoys," and "harasses" without defining them or without including an objective standard with regard to a stalking offense based on a following. The Bryan court focused on the "following" element because the 1994 statute defined the "course of conduct" element in relation to an objective standard "which would cause a reasonable person to suffer substantial emotional distress." 259 Kan. at 149-50. After comparing the 1994 statute to the 1992 version of the statute which incorporated an objective standard, the court explained the reasoning behind its decision:

"In the absence of an objective standard, the terms `annoys,' `alarms' and `harasses' subject the defendant to the particular sensibilities of the individual victim. Different persons have different sensibilities, and conduct which annoys or alarms one person may not annoy or alarm another. The victim may be of such a state of mind that conduct which would never annoy, alarm, or harass a reasonable person would seriously annoy, alarm, or harass this victim. In such a case, the defendant would be guilty of stalking, a felony offense, under the 1994 statute, even though a reasonable person in the same situation would not be alarmed, annoyed, or harassed by the defendant's conduct.

"Contrast this statutory language with language requiring that the following must be such that it would cause `a reasonable person to suffer substantial emotional distress' or place such person in reasonable fear for such person's safety. At the very least, under this language the finder of fact would not be left with the subjective state of mind of the victim as the determining factor but instead would have an objective reasonable person standard by which to determine whether the defendant committed the crime. Similarly, just as the finder of fact would be provided with an objective standard, so too would anyone subject this law be provided with an objective standard to determine what conduct would constitute the crime of stalking." 259 Kan. at 154-55.

In State v. Rucker, 267 Kan. 816, 987 P.2d 1080 (1999), the defendant argued that the 1995 version of the criminal stalking statute was unconstitutionally vague because it was unclear from the statute what constituted "alarming, annoying, or harassing" conduct. K.S.A. 21-3438 provided:

"(a) Stalking is an intentional, malicious and repeated following or harassment of another person and making a credible threat with the intent to place such person in reasonable fear for such person's safety.

. . . .

"(d) For the purpose of this section: (1) `Course of conduct' means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose and which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. Constitutionally protected activity is not

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