State v. Meinert

• Citation: 594 P.2d 232,225 Kan. 816
• Decision Date: 05 May 1979
• Docket Number: No. 50487,50487
• Parties: STATE of Kansas, Appellant, v. Wayne MEINERT, Appellee.
• Court: United States State Supreme Court of Kansas

Page 232

594 P.2d 232

225 Kan. 816

STATE of Kansas, Appellant, v. Wayne MEINERT, Appellee.

No. 50487.

Supreme Court of Kansas.

May 5, 1979.

Syllabus by the Court

1. Long and well established rules of this court are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution.

2. The test to determine whether a criminal statute is unconstitutional by reason of being vague and indefinite is 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.

3. The provisions of K.S.A. 21-3608(1)(A ) are held to be so vague and indefinite they fail to establish reasonably definite standards of guilt in accord with constitutional requirements of due process of law.

Frank J. Yeoman, Jr., Asst. Dist. Atty., argued the cause and Curt T. Schneider, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on the brief for appellant.

Cary L. Standiferd, Topeka, argued the cause and was on the brief for appellee.

HOLMES, Justice:

This is an appeal by the State from an order of the district court dismissing a criminal complaint against Wayne Meinert on the ground that K.S.A. 21-3608(1) (A ) is unconstitutionally vague. Defendant was charged under the statute with the offense of endangering a child. While the facts are not necessary in determining the question before this court, they will be recited briefly.

Defendant and Charlene Meinert were baby-sitting with thee-year-old Jeanette Lowery. Defendant admitted having spanked Jeanette for urinating on the floor and not in the proper receptacle. The parents had not given the Meinerts permission to spank Jeanette. Ron Lowery, Jeanette's father, filed a complaint against Wayne Meinert alleging a violation of K.S.A. 21- 3608(1)(A ), stating in his affidavit supporting the complaint that red marks were still visible on the child's buttocks four hours after the spanking took place.

K.S.A. 21-3608 provides in pertinent parts:

"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."

Defendant contended that the words "unjustifiable physical pain" as used in the statute are unconstitutional and fail to sufficiently identify the prohibited conduct as required by section 10 of the Kansas Bill of Rights and the Fifth and Fourteenth Amendments to the United States Constitution. The trial court so held and we agree with the trial court.

When statutes are challenged as unconstitutional, certain principles guide this court's consideration.

"Long-standing and well established rules of this court are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. (State ex rel. v. Fadely, 180 Kan. 652, 658, 659, 308 P.2d 537; Wall v. Harrison, 201 Kan. 600, 603, 443 P.2d 266; Moore v. Shanahan, 207 Kan. 645, 651, 486 P.2d 506; and 16 Am.Jur.2d, Constitutional Law, § 175, pp. 399-401.)" Leek v. Theis, 217 Kan. 784, 792-93, 539 P.2d 304, 313 (1975).

The vagueness test applicable to criminal statutes was iterated in State v. Kirby, 222 Kan. 1, 563 P.2d 408 (1977):

"The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite 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." p. 4, 563 P.2d p. 410.

See also, Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 562 P.2d 65 (1977); State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972); State v. Hill, 189 Kan. 403, 369 P.2d 365 (1962).

In State v. Hill, we stated:

"It is well recognized that in order to satisfy the constitutional requirements of due process, a state statute must be sufficiently explicit in its description of the acts, conduct or conditions required or forbidden, to prescribe the elements of the offense with reasonable certainty. The standards of certainty in a statute punishing for criminal offenses is higher than in those depending primarily upon civil sanction for enforcement. The offenses must be defined with appropriate definiteness. There must be ascertainable standards of guilt, but impossible standards of specificity are not required. Men of common intelligence cannot be required to guess at the meaning of the statute. The vagueness may be for uncertainty with respect to persons within the scope of the statute or in regard to applicable tests to ascertain guilt. The test is whether the language conveys a sufficient definite warning as to the proscribed conduct when measured by common understanding and practice. (United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200; Cramp v. Board of Public Inst. of Orange County, Fla., 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285, 292; Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Champlin Rfg. Co. v. Corporation Commission, 286 U.S. 210, 52 S.Ct. 559, 76 L.Ed. 1062, 86 A.L.R. 403.)" pp. 410-411, 369 P.2d pp. 370-371.

With the foregoing in mind, we now turn to the issue of whether K.S.A. 21-3608(1)(A ) is unconstitutionally vague on its face.

The State relies principally on two decisions from other states upholding statutes containing similar language to that in 21-3608. In the early case of People v. Curtiss, 116 Cal.App.Supp. 771, 300 P. 801 (1931), a school teacher who had administered a severe spanking to a child was convicted under a statute which made it a misdemeanor to inflict "unjustifiable physical pain or mental suffering" on any child. Cal.Penal Code, § 273a. On appeal the teacher contended, among other things, the statute was unconstitutionally vague and uncertain. The court upheld the validity of the statute comparing the test for justification to that of the reasonable man concept in civil negligence actions. The decision affirmed a decision of the Glendale Police Court and was rendered by a two judge court sitting as the appellate department of the Superior Court, Los Angeles County. It should also be noted that the California statute was much more detailed than 21-3608 and contained some definitional guidelines. We...