State v. Doyen, 49982
| Decision Date | 15 July 1978 |
| Docket Number | No. 49982,49982 |
| Citation | 580 P.2d 1351,224 Kan. 482 |
| Parties | STATE of Kansas, Appellant and Cross-Appellee, v. Ross O. DOYEN, Appellee and Cross-Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A criminal statute is to be strictly construed and is not to be extended by courts to embrace acts or conduct not clearly included within its prohibitions.
2. A person cannot aid and abet the commission of a crime unless another commits the offense. One cannot aid and abet himself in the commission of an offense.
3. As a general rule, if a person causes a crime to be committed through the instrumentality of an innocent agent, he is the principal in the crime and punishable accordingly, although he was not present at the time and place of the offense. This general rule is applicable, however, only in factual situations where the defendant could be found guilty as a principal if he committed the act himself.
4. The intentional failure of a candidate to remit to his campaign treasurer campaign contributions received by the candidate does not constitute fraudulent campaign finance reporting in violation of K.S.A.1977 Supp. 25-4129.
Philip A. Harley, Asst. Atty. Gen., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the briefs for appellant cross-appellee.
Robert D. Hecht of Scott, Quinlan & Hecht, Topeka, argued the cause, and was on the brief for appellee and cross-appellant.
This is an appeal by the state from the dismissal of a criminal complaint charging three counts of fraudulent campaign finance reporting in violation of K.S.A.1977 Supp. 25-4129. The sole issue presented by the state on the appeal is whether the complaint, together with the supporting affidavit, was sufficient to allege a violation of the statute.
For purposes of this appeal we will assume the following facts to be true: In 1976 the defendant, Ross O. Doyen, became a candidate for reelection to the Kansas Senate from the twenty-third senatorial district. On June 19, 1976, Doyen appointed Lowell A. Abeldt as his treasurer. In an affidavit filed by Phillip A. Harley, assistant attorney general, it is stated that Doyen personally received contributions to his 1976 state senatorial campaign from nine political action committees during September and October, 1976, which he did not remit to his campaign treasurer within five days after receipt, in violation of K.S.A.1977 Supp. 25-4106(D ). The nine contributions, which were withheld for a period of thirty to sixty days, were from the following organizations in the amounts designated: Kansas Optometric Political Action Committee, $100; Lawyers Encouraging the Advancement of Good Government, $100; Kansas Auto and Truck Dealers Interested in Government, $100; Political Action Committee of Kansas Consulting Engineers, $50; Kansas Dental Political Action Committee, $75; Chiropractic Political Action Committee, $300; Kansas Credit Union Legislative Action Committee, $200; Kansas Association for Political Education and Action, $100; and Chiropractic Political Action Committee, $200. The state claims that, by intentionally withholding these contributions from his treasurer, defendant Doyen caused his treasurer to make false material statements in the campaign finance reports filed with the secretary of state on October 27, 1976, and December 3, 1976. Harley's affidavit further states that Doyen's campaign treasurer, Lowell A. Abeldt, fully and timely reported all contributions known to him at the time each report was filed and that the treasurer had no knowledge of the nine contributions until November 1976, when he promptly reported the same. All of the reports filed by the campaign treasurer with the secretary of state were filed and verified by Abeldt as treasurer as required by law.
Simply stated, the theory of the prosecution is this: Doyen intentionally withheld information as to certain campaign contributions from his innocent treasurer, thus causing the treasurer to file three false reports; it is a crime to make false reports under the Campaign Finance Act; therefore, Doyen is criminally liable for making false reports. Fraudulent campaign finance reporting is made a crime by K.S.A.1977 Supp. 25-4129 which provides as follows:
Following the filing of the complaint the defendant appeared in district court and moved for a dismissal of the complaint on three grounds: (1) The service of summons was unlawful; (2) The attorney general had no authority to commence the prosecution; and (3) The complaint and the accompanying affidavit failed to allege an offense under 25-4129. The associate district judge dismissed the complaint on the grounds that the complaint and accompanying affidavit failed to state facts sufficient to allege an offense under the statute. As to the other grounds for dismissal, the trial judge ruled that the prosecution was properly commenced by the attorney general and that the service of summons upon the defendant was lawful. The state has appealed from the order dismissing the complaint. The defendant cross-appealed.
The sole issue raised on the appeal by the state is whether the complaint, in the three counts, is sufficient to allege a violation of 25-4129. It is the position of the state that the complaint properly alleged an offense against the defendant Doyen by accusing him of causing false campaign finance reports to be filed in violation of 25-4129, even though the actual filing was performed by his innocent agent. The state also maintains that the defendant is liable as an aider and abettor under K.S.A. 21-3205. The attorney general reasons that, although the campaign treasurer was innocent because he had no knowledge of the nine contributions, the defendant intentionally Caused his treasurer to file a false report by withholding the contributions from the treasurer. Hence the state argues that the defendant is guilty of fraudulent campaign finance reporting.
In order to determine the issue raised on the appeal, we must carefully analyze those provisions of the Campaign Finance Act (K.S.A.1977 Supp. 25-4101, Et seq.) which are pertinent in this case. Under the act, certain procedures have been established which must be followed in the course of any political campaign. For purposes of clarity, we will discuss them step-by-step.
(1) Not later than ten days after becoming a candidate, every candidate must appoint either a campaign treasurer or a candidate committee (25-4103). The provisions pertaining to candidate committees are not involved in this case and will not be further mentioned. Not later than ten days after the appointment of his treasurer, the candidate must report the name and address of the treasurer to the secretary of state. The failure of the candidate to appoint a treasurer or to report his appointment to the secretary of state is specifically made a class A misdemeanor by K.S.A.1977 Supp. 25-4133.
(2) A candidate may remove any treasurer that he has appointed, but, if he does so, he must appoint a successor and report the name and address of the successor within ten days of the occurrence of the vacancy to the secretary of state (25-4105). All contributions or expenditures must be made by or through the treasurer. If a candidate violates 25-4105 he may be convicted of a class A misdemeanor under the provisions of 25-4133.
(3) Section 25-4106(A ) requires the Treasurer To keep detailed accounts of all contributions and expenditures. 25-4106(D ) provides that every person who receives a contribution for a candidate shall, on demand of the treasurer, or in any event within five days after receipt of such contribution, remit the same and render to the treasurer an account thereof, including the amount, the name, and address of the person, if known, making the contribution and the date received. It is important to note that a violation of 25-4106 is Not declared to be a misdemeanor under the provisions of 25-4133 or in any other section of the Campaign Finance Act. The failure of a candidate, or any other person, to remit a contribution to the treasurer within five days after receipt is not made a criminal offense under the act.
(4) Section 25-4108 is a detailed, comprehensive statute which requires the campaign treasurer to file a series of five reports of contributions and expenditures in the office of the secretary of state. Each of the five reports covers a specific period of time, before and after the primary and general elections, and includes all contributions and expenditures during that period. If the treasurer files a report containing material errors or omissions, the Governmental Ethics Commission may require the treasurer to file an amended report. The intentional failure to file a campaign finance report by any person required to make the report is made a class A misdemeanor by section 25-4128. The intentional making of any false material statement in a report or statement constitutes fraudulent campaign reporting and is made a class A misdemeanor by section 25-4129. It is important to note here that, under 25-4108, it is the Treasurer who is required to file the reports. There is nothing in that section which requires the Candidate to file reports of contributions and expenditures.
(5) Section 25-4111 provides for the verification of reports. The Treasurer is required to verify as correct any of the five periodic reports required by 25-4108. The candidate is required to verify the reports required by 25-4103 pertaining to the appointment of his campaign treasurer. The intentional failure to verify reports as required by 25-4111 is specifically made a class A misdemeanor by section 25-4133.
The duty of enforcing the Campaign...
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