State v. Fisher, 52744

• Decision Date: 17 July 1981
• Docket Number: No. 52744,52744
• Citation: 230 Kan. 192,631 P.2d 239
• Parties: STATE of Kansas, Appellant, v. Kathleen FISHER, Appellee.
• Court: Kansas Supreme Court

Page 239

631 P.2d 239

230 Kan. 192

STATE of Kansas, Appellant, v. Kathleen FISHER, Appellee.

No. 52744.

Supreme Court of Kansas.

July 17, 1981.

Syllabus by the Court

In an appeal from the dismissal of a complaint charging the defendant, Kathleen Fisher, with endangering a child in violation of K.S.A. 21-3608(1)(b), and holding that statute unconstitutionally vague, it is held that the purpose of the statute is to prevent people from placing children in situations where their lives and bodies are in imminent peril, and that the statute, given a common sense interpretation, is not vague. The judgment is reversed and the case is remanded to the trial court for further proceedings.

Susan Ellmaker, Asst. Dist. Atty., argued the cause, and Dennis W. Moore, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief for appellant.

Louis S. Wexler, of Wexler and Wingfield, Shawnee Mission, argued the cause and was on the brief for appellee.

MILLER, Justice:

The State brings this appeal as a matter of right from an order of the Johnson district court dismissing a complaint charging the defendant, Kathleen Fisher, with endangering a child, K.S.A. 21-3608(1)(b), and holding that statute unconstitutionally vague. We reverse.

The statute reads:

"21-3608. Endangering a child. (1) Endangering a child is willfully:

(a) Causing or permitting a child under the age of eighteen (18) years to suffer unjustifiable physical pain or mental distress; or

(b) Unreasonably causing or permitting a child under the age of eighteen (18) years to be placed in a situation in which its life, body or health may be injured or endangered."

We held subsection (a) unconstitutional in State v. Meinert, 225 Kan. 816, 594 P.2d 232 (1979), finding the words "unjustifiable physical pain or mental distress" undefined in the statutes and too vague to pass constitutional muster. We noted that the title of the statute was "endangering a child" and that in State v. Kirby, 222 Kan. 1, 563 P.2d 408 (1977), we found the language "endangering of life" without further statutory definition too indefinite to pass the vagueness test applicable to criminal statutes. We said at p. 4, 563 P.2d 408:

"The test (for vagueness) ... is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, 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. At its heart the test for vagueness is a commonsense determination of fundamental fairness."

We now turn to subsection (b) of the statute. It defines "endangering a child" as "Unreasonably causing or permitting a child ... to be placed in a situation in which its life, body or health may be injured or endangered." (Emphasis supplied.)

The action forbidden must be unreasonably done it must not be reasonable. "Reasonable" and "unreasonable" are words of common usage, readily understood. Reasonableness is used as a standard of conduct throughout our statutes and our jury instructions.

Driving a vehicle at speeds greater than is reasonable is a misdemeanor. See K.S.A. 8-1335, 8-1557, and Laws of 1913, Ch. 65, § 7. The reasonableness of the belief of the accused is an essential element in the defenses of compulsion, K.S.A. 21-3209, self defense, K.S.A. 21-3211, 3214, and defense of property, K.S.A. 21-3212, 3213, 3214. A law enforcement officer is authorized to use such force as "he reasonably believes to be necessary" in making an arrest. K.S.A. 21-3215. Disorderly conduct is defined in our statute as "engaging in noisy conduct tending reasonably to arouse ... anger ... in others." K.S.A. 21-4101(c). Similar statutes of other states prohibiting unreasonable noise as disorderly conduct have been upheld when challenged as unconstitutionally vague. See People v. Fitzgerald, 194 Colo. 415, 573 P.2d 100 (1978); State v. McDermott, 135 Vt. 47, 373 A.2d 510 (1977).

Vehicular homicide is the killing of a human being by the operation of a vehicle "in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances." K.S.A. 21-3405. We upheld that statute in the face of a charge that it was unconstitutionally vague and indefinite in State v. Randol, 226 Kan. 347, 351, 597 P.2d 672 (1979). Justice Holmes, speaking for a unanimous court, said:

"It is true that no hard and fast rule can be stated that would set an obvious standard of conduct in every factual situation. No such standard is required. The fact that the prescribed standard of conduct in a criminal statute may be one of varying degree dependent upon the factual circumstances in each case does not make a criminal law unconstitutional. As Mr. Justice Holmes of the United States Supreme Court said in Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232 (1913):

" '(T)he law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death. "An act causing death may be murder, manslaughter, or misadventure, according to the degree of danger attending it" by common experience in the circumstances known to the actor.... "The criterion in such cases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct." ' "

We conclude that "unreasonably," as that word is used in K.S.A. 21-3608(1) (b), is the doing or the omitting of some action contrary to reason, the doing of or omitting to do something that the average person possessing ordinary mental faculties, would not have done or would not have omitted under all of the attendant and known circumstances.

Next we turn to the word "may." In ordinary usage it is permissive; it connotes a possibility, however remote; it means to be in some perhaps shall degree likely, or to stand a chance of occurring. We have narrowly construed the word, as used in some statutes, and have held it to be mandatory and to mean "must," where that construction was necessary to reflect the intention of the legislature. See Johnson v. Connelly, 88 Kan. 861, 129 P. 1192 (1913), and National Bank v. City of St. John, 117 Kan. 339, 230 P. 1038 (1924). In other instances we have given the word a broad and permissive construction. See In re McCort, 52 Kan. 18, 34 P. 456 (1893); and Foster v. Harper County Comm'rs, 143 Kan. 361, 55 P.2d 349 (1936). Other jurisdictions have given the word restrictive construction where necessary and appropriate. The Fifth Circuit Court of Appeals, in International Air Ind., Inc. v. American Excelsior Co., 517 F.2d 714, 728, (5th Cir. 1975), cert. den. 424 U.S. 943, 96 S.Ct. 1411, 47 L.Ed.2d 349 (1976), approved a trial court instruction that the phrase "may be substantially to lessen competition," as used in the Robinson-Patman Act, means "a reasonable probability or possibility, not imaginary or elusive, of lessening competition..."

The Colorado Supreme Court, in People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977) upheld a section very similar to the Kansas statute when it was challenged on constitutional grounds. The Colorado statute read:

"(1) A person commits child abuse if he knowingly, intentionally, or negligently, and without justifiable excuse, causes or permits a child to be:

"(a) Placed in a situation that may endanger the child's life or health". Colo.Rev.Stat. § 18-6-401(1)(a) (1973). (Emphasis supplied.)

The court cited a rule for situations in which a statute may be interpreted in several ways, one of which is constitutional, concluding that in those situations the constitutional interpretation should be adopted. The court discussed the statutory language, including the construction to be placed on the word "may," as follows:

"Normally, 'may' means 'be in some degree likely', Merriam-Webster's New International Dictionary (Third Edition) p. 1396, 'expressing ability, competency, liberty, permission, possibility, probability or contingency.' Black's Law Dictionary 1131 (4th rev. ed. 1968). See Greyhound Corp. v. Excess Insurance Co., 233 F.2d 630 (5th Cir. 1956); Grant v. Utah State Land Board, 26 Utah 2d 100, 485 P.2d 1035. So construed, we seriously doubt whether 'may' in a criminal statute provides a fair description of the prohibited conduct, since virtually any conduct directed toward a child has the possibility, however slim, of endangering the child's life or health. People v. Gonzales, supra (188 Colo. 272, 534 P. 2d 626 (1975)). See State v. Lucero, 87 N.M. 242, 531 P.2d 1215 (N.M.Ct.App.1975); State v. Llopis, 257 So.2d 17 (Fla.1971).

"We have not, however, hesitated to construe 'may' as importing a greater degree of certainty, where necessary. Duprey v. Anderson, 184 Colo. 70, 518 P.2d 807 ('may' interpreted as 'shall' in statute); Carleno Sales v. Ramsay Co., 129 Colo. 393, 270 P.2d 755 (interpreted as 'shall' in contract.) Other courts have similarly found it necessary to depart from the everyday understanding of 'may' in construing statutes, International Air Industries, Inc. v. American Excelsior Co., 517 F.2d 714 (5th Cir. 1975), cert. denied, 424 U.S. 943, 96 S.Ct. 1411, 47 L.Ed.2d 349 (interpreted as 'reasonable possibility'); Federal Trade Commission v. Charles N. Miller Co., 97 F.2d 563 (1st Cir. 1938) (construed as 'are designed to'), and contracts; Greyhound Corp. v. Excess Insurance Co., supra (construed as 'frequently and regularly').

"We construe the word 'may' in section 18-6-401(1)(a) to mean that there is a...