State v. Kimpel
Decision Date | 03 March 1995 |
Docket Number | CR-93-1361 |
Citation | 665 So.2d 990 |
Parties | STATE v. Toni Darlene KIMPEL. |
Court | Alabama Court of Criminal Appeals |
James H. Evans, Atty. Gen., Rosa Davis, Asst. Atty. Gen., and Steve Willoughby, Asst. Atty. Gen., JoBeth Murphree, Asst. Dist. Atty., Mobile, for appellant.
Douglas H. Scofield, Birmingham, for appellee.
Toni Darlene Kimpel was charged, in five separate indictments, with practicing nurse midwifery without a license. This offense is a misdemeanor under § 34-19-3, Code of Alabama 1975. The trial court, holding that § 34-19-3 is "vague and ambiguous," 1 1 dismissed the indictments in a pretrial order. The state appeals the trial court's ruling.
Kimpel argues that this court is without jurisdiction to hear this appeal. She relies on Rule 15.7(a), Ala.R.Crim.P.:
(Emphasis added.) Kimpel notes that this court has interpreted Rule 15.7 to be the exclusive avenue for a pretrial appeal by the state in a criminal case and to be inapplicable to misdemeanors. In City of Attalla v. Smith, 596 So.2d 651, 651 (Ala.Cr.App.1992), this court held, We find, however, that the rationale of City of Attalla v. Smith is incorrect, because it flies in the face of the state's statutory right to appeal judgments holding statutes unconstitutional.
Section 12-22-91, provides another means by which the state may appeal a trial court's judgment:
"In all criminal cases when the act of the legislature under which the indictment or information is preferred is held to be unconstitutional, the district attorney may take an appeal in behalf of the state to the supreme court, which appeal shall be certified as other appeals in criminal cases, and the clerk must transmit, without delay, the record on appeal and the notice of appeal to the supreme court."
(Emphasis added.) This provision originally appeared as § 4515, Code of Alabama of 1886. At that time, the Supreme Court was the only appellate court in Alabama. Therefore, the term "supreme court" was not intended to deny jurisdiction to the Court of Criminal Appeals, which was established in 1969, or to our predecessor, the Court of Appeals, which was established in 1911. See, e.g., State v. Street, 117 Ala. 203, 23 So. 807 (1898) ( ).
The judicial history of this statute demonstrates that the Alabama Supreme Court and the Court of Criminal Appeals agree that appeals under § 12-22-91 may properly be brought initially to this court. State v. Gooden, 570 So.2d 865 (Ala.Cr.App.1990) ( ), State v. Franklin, 541 So.2d 593 (Ala.Cr.App.1989) ( ), State v. Clayton, 492 So.2d 665 (Ala.Cr.App.1986) ( ), State v. Woodruff, 460 So.2d 325 (Ala.Cr.App.1984) ( ), State v. Spurlock, 393 So.2d 1052 (Ala.Cr.App.1981) ( ), State v. Wilkerson, 54 Ala.App. 104, 305 So.2d 378 (, )cert. denied, 293 Ala. 774, 305 So.2d 382 (1974). Although there are several cases in which the Supreme Court has decided a § 12-22-91 issue on direct appeal, State v. Rogers, 281 Ala. 27, 198 So.2d 610 (1967), State v. Mills, 278 Ala. 188, 176 So.2d 884 (1965), rev'd on other grounds, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966), State v. Cecil, 216 Ala. 391, 113 So. 254 (1927) ( ), those cases were decided under § 7310, Code of Alabama of 1923, and its progeny. Section 7310 required that all appeals challenging the constitutionality of a statute must be heard by the Supreme Court, as opposed to the Court of Appeals. This statute was repealed by the adoption of the Code of Alabama 1975. The codifiers considered and rejected the idea of limiting our intermediate appellate courts' jurisdiction over constitutional issues.
Under § 12-22-91, the state may appeal the trial court's judgment in any case where the trial court holds the statute creating an offense unconstitutional. State v. Gautney, 344 So.2d 232 (Ala.Cr.App.1977), and State v. Powe, 28 Ala.App. 402, 185 So. 781 (1939). When a statute is held unconstitutional by a pretrial order, that order is a final judgment and the state may appeal under § 12-22-91. See § 12-22-2 ( ). See also Sparks v. State, 40 Ala.App. 551, 554, 119 So.2d 596, 599 (1959) (), cert. denied, Sparks v. State, 270 Ala. 488, 119 So.2d 600 (1960). Furthermore, § 12-22-91 applies to both misdemeanor and felony cases. See State v. Hewlett, 124 Ala. 471, 27 So. 18 (1899) ( ), and City of Mobile v. Welch, 572 So.2d 1322, 1323 (Ala.Cr.App.1990) (same), quoted in Ex parte Adams, 592 So.2d 641 (Ala.1991).
Therefore, although Rule 15.7 does not give this court jurisdiction over this appeal, the state's appeal is properly before this court by virtue of § 12-22-91. 2 That portion of Attalla v. Smith that conflicts with this opinion is expressly overruled.
The state contends that the trial court erred in concluding that § 34-19-3 was unconstitutionally vague. Section 34-19-3 states:
When construing the language of a statute, "it is a court's duty to give effect to the intent of the legislature as expressed in the words contained in the statute." Ex parte Rodgers, 554 So.2d 1120 (Ala.1989).
In this case, both the words and the meaning of Alabama's midwifery statute are clear on the face of the statute. Section 34-19-3(a) prohibits one specific category of conduct, "the practice of nurse midwifery," defined as, "[c]are for the mother during pregnancy and labor providing continuous physical and emotional support and evaluation of progress throughout labor and delivery." § 34-19-2(2), Code of Alabama 1975. These sections provide adequate notice of what conduct is prohibited.
Each of the indictments issued by a Mobile County grand jury reads in pertinent part:
"Toni Darlene Kimpel ... did, by agreement or contract for payment or other payment or consideration, provide care, management, evaluation, examinations, pre-natal care, advice and assistance as a nurse midwife during the pregnancy and delivery of a child ..."
Kimpel's vagueness challenge is predicated on her assertion that she practiced lay midwifery, rather than nurse midwifery. Because nurse midwifery is defined by statute, and because the term "lay midwives" appears in the statute without definition, Kimpel argues that the statute does not prohibit her midwifery practice. This argument is without merit.
"[T]he essential purpose of the 'void for vagueness' doctrine is to warn individuals of the criminal consequences of their conduct." Jordan v. De George, 341 U.S. 223, 230, 71 S.Ct. 703, 707, 95 L.Ed. 886 (1951). First, these indictments allege conduct that, if proven, would clearly be prohibited by § 34-19-3. Second, the term "lay midwives" appears in § 34-19-3(b), which allows "lay midwives holding valid health department permits," to continue the practice of lay midwifery. Kimpel has never possessed such a permit. 3 This statute clearly prohibits a narrowly defined class of conduct. We therefore find that this statute is neither vague nor ambiguous.
Kimpel argues that Alabama's midwifery statute is unconstitutional because, she contends, it constitutes an invasion of privacy and violates her right to Equal Protection under the law. These contentions are without merit.
In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme Court recognized that the state has a legitimate interest in providing for the safety of a viable fetus. When the fetus is viable (the court determined that viability begins at the end of the first trimester), the mother's privacy rights are subjugated to the governmental interest in protecting both hers and the child's safety. See also People v. Rosburg, 805 P.2d 432 (Colo.1991) ( ), accord Bowland...
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