State v. Adams

• Decision Date: 21 January 1994
• Docket Number: No. 68636,68636
• Citation: 866 P.2d 1017,254 Kan. 436
• Parties: STATE of Kansas, Appellant, v. John B. ADAMS, Appellee.
• Court: Kansas Supreme Court

Page 1017

866 P.2d 1017

254 Kan. 436

STATE of Kansas, Appellant, v. John B. ADAMS, Appellee.

No. 68636.

Supreme Court of Kansas.

Jan. 21, 1994.

Syllabus by the Court

1. A statute is vague and violates due process if it prohibits conduct in terms so vague that a person of common intelligence cannot understand what conduct is prohibited, and it fails to adequately guard against arbitrary and discriminatory enforcement.

2. The standards of certainty in a statute punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement.

3. In an appeal by the State in the prosecution of the Chief of Police of St. John for official misconduct, the record is examined, and it is held the district court did not commit error in finding that K.S.A. 21-3902 is unconstitutionally vague.

Ky Ann Buck, Co. Atty., argued the cause and Robert T. Stephan, Atty. Gen., was with her on the brief, for appellant.

Michael S. Holland, Russell, argued the cause and was on the brief, for appellee.

ALLEGRUCCI, Justice.

This is an appeal by the State, pursuant to K.S.A.1992 Supp. 22-3601(b)(2) and K.S.A. 22-3602(b)(1), from an order of the district court dismissing two counts of official misconduct, K.S.A. 21-3902, against John B. Adams, the Chief of Police of St. John, Kansas. The complaint was dismissed on the ground that the statute is unconstitutionally vague and indefinite.

The charges arose out of two separate incidents. In Count I of the complaint, Adams was charged with advising potential witnesses. While sitting in a marked patrol car, Adams allegedly had a conversation with Kristin Rodarmel and Nickie Willinger about three incidents which allegedly occurred at the residence of John Court Adams, Adams' son, at his 20th birthday party on November 30, 1991. The incidents were subjects of criminal investigation at the time Adams had the conversation with Rodarmel and Willinger. The incidents were serving cereal malt beverage to underaged persons, battering of John Long by John Court Adams, and criminal trespass by John Long.

Adams went to his son's residence during the party. Beer cans and liquor bottles were readily visible on the kitchen counter while he was there. Approximately 15 persons attended the party, and only 3 were over the age of 21. There was a fight at the party between John Court Adams and John Long. As a result, John Long was treated at the hospital for a cracked cheekbone and a facial laceration.

In the afternoon of December 1, 1991, at a convenience store in St. John, Adams is alleged to have said to Rodarmel and Willinger that the Kansas Bureau of Investigation would be interviewing witnesses and that "[i]f I were the minors at the party, I would say I did not drink and I did not know where the beer came from." Rodarmel was 16 and Willinger was 17 at the time.

In Count II of the complaint, Adams was charged with searching a motor vehicle without the legal authority to do so. Adams allegedly searched a 1988 Oldsmobile without the consent of the owner, Frank Trevino, and without a search warrant. The search took place at the Cherrylane Apartments in St. John at approximately 9:30 p.m. on September 11, 1991. Trevino is a resident of Great Bend.

At approximately 8:54 p.m., the dispatcher received a report of suspicious activity at the Cherrylane Apartments. Officers who went to the apartment complex observed no suspicious activity. At approximately 9:29 p.m., the same person who had contacted the dispatcher earlier reported to the Stafford County Sheriff's Office that there was suspicious activity at the Cherrylane Apartments. Four officers, including Adams, went to the apartment complex. Adams directed the other officers to watch for persons arriving at or leaving the apartment complex. Without attempting to obtain consent or a warrant, Adams searched Trevino's car. Adams removed a container from the car, determined that it contained sugar, and replaced it in the car.

Adams was charged under K.S.A. 21-3902. However, the district court found that "the statute is vague and it is indefinite as to what conduct is proscribed" and that it cannot "serve as a definite warning to the person allegedly committing official misconduct." The district court therefore concluded that the statute was unconstitutional and granted the defendant's motion to dismiss.

The sole issue on appeal is whether K.S.A. 21-3902, on its face, is unconstitutionally vague and indefinite. K.S.A. 21-3902 provides in pertinent part as follows:

"Official misconduct is any of the following acts committed by a public officer or employee in his public capacity or under color of his office or employment:

"(a) Willfully and maliciously committing an act of oppression, partiality, misconduct or abuse of authority....

....

"Official misconduct is a class A misdemeanor. Upon conviction of official misconduct a public officer or employee shall forfeit his office or employment."

The State urges this court, at the outset, to appreciate the need to construe a statute as constitutionally firm whenever possible. The State directs the court's attention to the following principles quoted in City of Wichita v. Wallace, 246 Kan. 253, 257, 788 P.2d 270 (1990):

" '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 substantial doubt.' " (Quoting Moody v. Board of Shawnee County Comm'rs, 237 Kan. 67, 74, 697 P.2d 1310 [1985].)

In relation to the specific complaint of vagueness, this court stated:

"[T]he void-for-vagueness analysis is based upon a due process requirement that 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. State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983)." City of Wichita, 246 Kan. at 258, 788 P.2d 270.

In State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983), the test was stated as

"whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process."

In City of Wichita, 246 Kan. at 259, 788 P.2d 270, the court quoted State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977), for this trenchant comment: " 'At its heart the test for vagueness is a commonsense determination of fundamental fairness.' "

In addition to the inquiry whether the proscribed conduct is adequately defined, the court recognizes that a second inquiry is appropriate. That inquiry is " 'whether the ordinance adequately guards against arbitrary and discriminatory enforcement.' Dunn, 233 Kan. at 418 (citing Cardarella v. City of Overland Park, 228 Kan. 698, 702, 620 P.2d 1122 [1980]." City of Wichita, 246 Kan. at 259, 788 P.2d 270. When making either inquiry, the court should bear in mind that "[t]he standards of certainty in a statute punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement." 246 Kan. 253, Syl. p 3, 788 P.2d 270.

In Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972), the United States Supreme Court discussed the reasons why "[v]ague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application."

Here, the district court's conclusion that K.S.A. 21-3902 is void for vagueness was based on its finding that the proscription was too indefinite to serve as a warning. The State contends that the district court erred in finding that the statute failed to adequately define the proscribed conduct.

Although "overbreadth" is not the basis for the district court's decision, it is argued by both parties in this appeal.

In City of Wichita, this court cautioned that confusion may occur when "vagueness" and "overbreadth" are used interchangeably. There, it was stated that a statute "can be clear and unambiguous but may nevertheless be overbroad if it prohibits constitutionally protected conduct." 246 Kan. at 264, 788 P.2d 270. Hence, even if the precision of the drafting of K.S.A. 21-3902(a) and the clarity of its purpose were above reproach, if it prohibited constitutionally protected speech, it would be impermissibly overbroad.

The following discussion of the difference between "vagueness" and "overbreadth" from 16A Am.Jur.2d, Constitutional Law § 460, pp. 247-48, is quoted in City of Wichita, 246 Kan. at 264, 788 P.2d 270:

" 'The distinction between the doctrines of overbreadth and vagueness is that the overbreadth doctrine is applicable primarily in the First Amendment area and may render void legislation which is lacking neither in clarity nor precision, whereas the vagueness doctrine is rested on the due...