State v. Gulledge

• Decision Date: 02 June 1995
• Docket Number: No. 72315,72315
• Citation: 896 P.2d 378,257 Kan. 915
• Parties: STATE of Kansas, Appellant, v. Barbara GULLEDGE, Appellee.
• Court: Kansas Supreme Court

Page 378

896 P.2d 378

257 Kan. 915

STATE of Kansas, Appellant, v. Barbara GULLEDGE, Appellee.

No. 72315.

Supreme Court of Kansas.

June 2, 1995.

Syllabus by the Court

1. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights protect against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

2. The Kansas drug tax imposed pursuant to the provisions of K.S.A. 79-5201 et seq. imposes a tax on the acquisition or possession by certain individuals of marijuana and controlled substances.

3. The Kansas Drug Tax Act, K.S.A. 79-5201 et seq., does not impose a criminal penalty for purposes of double jeopardy under the United States and Kansas Constitutions.

4. Due to substantial differences between the Montana and Kansas drug tax statutes, Montana Dept. of Rev. v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), is inapplicable, for double jeopardy purposes, to the Kansas Drug Tax Act.

Joe Shepack, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellant.

Reid T. Nelson, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellee.

Brian Cox, Legal Services Bureau, was on the brief, Topeka, for amicus curiae Kansas Dept. of Revenue.

HOLMES, Chief Justice:

The State of Kansas appeals from an order of the district court dismissing a complaint against Barbara Gulledge a/k/a Barbara Jones for possession of marijuana in violation of K.S.A.1993 Supp. 65-4127b and possession of marijuana without a tax stamp in violation of K.S.A. 79-5201 et seq. Based on Montana Dept. of Rev. v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), the district court found further prosecution of the complaint would constitute double jeopardy because a drug tax had already been assessed and partially satisfied. This court has jurisdiction pursuant to K.S.A.1994 Supp. 22-3602(b)(1) (appeal to Supreme Court from order dismissing complaint).

For the purposes of this appeal, the parties have stipulated to the following facts:

"1) That Barbara Gulledge was charged in the District Court of Ellsworth County, Kansas, on the 13th day of September, 1993, with the misdemeanor crime of possession of marihuana and the felony crime of possession of marihuana without a tax stamp affixed thereto, in violation of K.S.A. 65-4127b and K.S.A. 79-5201, et seq., respectively.

"2) That these charges were still pending against the Defendant as of July 7, 1994.

"3) That subsequent to the filing of the aforesaid formal charges against the Defendant, the Kansas Department of Revenue did assess and levy a drug tax against the Defendant Barbara Gulledge. The basis for this assessment and levy was the quantity of marihuana, allegedly possessed by Gulledge which gave rise to the criminal charges in Ellsworth County District Court against Barbara Gulledge.

"4) That the officers arresting Gulledge seized from her person as of the date of the arrest the sum of $428.00. This said amount of money was delivered to the Kansas Department of Revenue prior to July 7, 1994, as per a drug tax warrant served upon Ellsworth County Law Enforcement officers by Kansas Department of Revenue Agent Bruce Stout.

"5) That the Kansas Department of Revenue did serve upon the Defendant Gulledge a copy of the drug tax warrant prior to July 7, 1994.

"6) That the seizure of the $428.00 by the Kansas Department of Revenue is final and, otherwise, non-appealable."

The docketing statement filed by the State asserts that the drug tax assessed against the defendant "was satisfied in full." The defendant filed a pretrial motion seeking dismissal of the criminal charges on the grounds that further prosecution after assessment and payment of the drug tax constituted double jeopardy under the United States and Kansas Constitutions. Following argument, the trial court granted the motion based upon the holding of the Supreme Court in Kurth Ranch.

The issue now before us may be stated as: Does assessment and payment of amounts allegedly owed under the Kansas Drug Tax Act constitute a criminal punishment for double jeopardy purposes under the holding in Montana Dept. of Rev. v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767?

Before turning to the Supreme Court's decision in Kurth Ranch and the position of the parties to this appeal, the relevant provisions of the Kansas Drug Tax Act and our decisions interpreting the Act will be briefly reviewed.

The statutes imposing a tax on marijuana and controlled substances, commonly referred to as the Kansas Drug Tax Act (Act), were first adopted in 1987 and are codified at K.S.A. 79-5201 et seq. "Marijuana" is defined by reference to the appropriate subsections of K.S.A. 65-4101 and is included within the Act if possessed in violation of Kansas law. K.S.A.1993 Supp. 79-5201(a). A "dealer" is any person who unlawfully acquires or possesses more than 28 grams of marijuana. K.S.A.1993 Supp. 79-5201(c). K.S.A.1993 Supp. 79-5202 imposes a tax on marijuana and other controlled substances and bases the rate of taxation on the weight of the substance in a dealer's possession. Marijuana is taxed at $3.50 per gram. K.S.A. 79-5203 provides for administration of the tax by the Director of Taxation and requires certain forms to be filled out at the time of payment of the tax.

K.S.A.1993 Supp. 79-5204(a) prohibits a dealer from possessing marijuana unless the tax has been paid. Official stamps or labels are to be purchased from the Director of Taxation and affixed to the marijuana as evidence of payment. Each stamp is valid for three months after issuance. Any person may purchase the stamps without disclosing his or her identity. K.S.A.1993 Supp. 79-5204(b). The tax is due immediately upon acquisition or possession of marijuana in the state. K.S.A.1993 Supp. 79-5204(d). K.S.A.1993 Supp. 79-5205(a), applicable here, allows the Director to assess the tax immediately upon learning it has not been paid. If payment is not immediately made after notifying the dealer of the tax, penalty and interest due, the Director may collect the amount due as provided in the income tax statutes. The taxpayer has 15 days to request a hearing regarding the assessment. K.S.A.1993 Supp. 79-5205(b). Information obtained in compliance with the Act is confidential and may not be used against the dealer in any criminal proceeding except proceedings involving taxes due under the Act. K.S.A. 79-5206.

K.S.A. 79-5208 establishes criminal and civil penalties. A dealer violating the Act is subject to a civil penalty of 100 percent of the tax in addition to payment of the tax itself. The Act makes distributing or possessing marijuana without affixing the appropriate stamps a crime, and upon conviction, the dealer may be sentenced to not more than five years imprisonment and/or payment of a fine not exceeding $10,000. The statute was amended in 1994 to provide that the crime is a severity level 10 felony. See K.S.A.1994 Supp. 79-5208. The Act does not give a dealer immunity from criminal prosecution. K.S.A. 79-5209. Those legally possessing the drug, such as doctors, pharmacists, or hospitals, are exempted. K.S.A. 79-5210.

Although the instant case does not involve the constitutionality of the Act itself, three Kansas cases which have considered various constitutional attacks on the Act are instructive. The first case to consider the constitutional validity of the Act was State v. Durrant, 244 Kan. 522, 769 P.2d 1174, cert. denied 492 U.S. 923, 109 S.Ct. 3254, 106 L.Ed.2d 600 (1989). In Durrant, the court held the Act does not violate the Fifth Amendment privilege against self-incrimination because all information obtained through compliance with the Act is confidential and may not be used as evidence in the prosecution for any crimes, other than enforcement of the Act itself. 244 Kan. at 535, 769 P.2d 1174.

Next, the Court of Appeals in State v. Matson, 14 Kan.App.2d 632, 798 P.2d 488 (1990), rev. denied 249 Kan. 777 (1991), considered a defendant's claim that the drug tax was really a criminal penalty and as such violated his Fourteenth Amendment right to due process. In Matson, the court relied heavily on United States v. Sanchez, 340 U.S. 42, 71 S.Ct. 108, 95 L.Ed. 47 (1950), where the United States Supreme Court upheld a federal statute (now repealed) that taxed the transfer of marijuana to a person who had not paid a special tax and registered. Sanchez recognized a tax may be valid even though it regulates, discourages, or deters the activity taxed. This principle applies even though the revenue obtained is negligible or the revenue purpose of the tax is secondary. 340 U.S. at 44, 71 S.Ct. at 109-10.

After reviewing Sanchez, the court in Matson analyzed the legislative history of the Kansas Drug Tax Act:

"Although the minutes of the Kansas House and Senate Committees show that the primary purpose of the Act was to combat drug usage, raising revenue was a motive that was definitely considered. The committee minutes reflect the following statement by Rep. Robert Miller: 'The taxes would provide a way to tax part of the flourishing underground economy that is normally operating on a tax-free basis.' Hearings on HB-2140 before the House Taxation Committee, 1987 Session. Other testimony before the committee reflects similar goals, including suggestions that the revenue collected be used not only to combat illegal drug usage but also for a program for the prevention, education, and rehabilitation of those adversely affected by the drug trade." 14 Kan.App.2d at 640, 798 P.2d 488.

Matson upheld the constitutionality of the statute "[b]ecause revenue collection is one of the objectives of the statute and because...