State v. Spencer Gifts, LLC
| Decision Date | 08 July 2016 |
| Docket Number | No. 111,398,111,398 |
| Citation | 374 P.3d 680,304 Kan. 755 |
| Parties | State of Kansas, Appellant, v. Spencer Gifts, LLC, Appellee. |
| Court | Kansas Supreme Court |
Steven J. Obermeier, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general were with him on the briefs for appellant.
Tricia A. Bath, of Bath & Edmonds, PA, of Overland Park, argued the cause, and Thomas J. Bath, Jr., and Mitch E. Biebighauser, of the same firm, were with her on the brief for appellee.
Kansas' speedy trial statute, K.S.A. 2015 Supp. 22–3402(b)
, provides in relevant part: “If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged.” (Emphasis added.) Despite the express limitation of this provision to cases in which a defendant has been “held to answer on an appearance bond,” the defendant in this case, who was not on bond, relied on this statute in seeking dismissal of all charges when a trial did not occur within 180 days after arraignment. The district court granted the dismissal, and the State appealed. The Court of Appeals, in a split decision, affirmed the dismissal based on this court's decision in City of Elkhart v. Bollacker , 243 Kan. 543, 546, 757 P.2d 311 (1988)
, which held the legislature intended for 22–3402(2)—now 22–3402(b)—to apply even when a defendant had not been held on an appearance bond. State v. Spencer Gifts, 51 Kan.App.2d 437, 348 P.3d 611 (2015). The concurrence argued that Bollacker had been decided incorrectly and should be overruled.
On our review of the Court of Appeals decision, the State argues we should overrule
, apply the unambiguous appearance bond limitation of 22–3402(b), and reverse the district court and Court of Appeals. We agree with the State that K.S.A. 2015 Supp. 22–3402(b) unambiguously limits its application to cases in which a defendant has posted an appearance bond, and we further agree that Bollacker should be overruled. We do so because the Bollacker court, in extending 22–3402(b) to defendants who are not held on an appearance bond, had to add words to the unambiguous language of 22–3402(b)—and thereby violated our rules of statutory interpretation, which do not allow courts to rewrite unambiguous statutes. We, therefore, cannot agree with the reasoning in Bollacker and, after weighing the various considerations relevant to a determination of whether we should overrule precedent, conclude Bollacker should be overruled. Nevertheless, we affirm the application of Bollacker in this case because it formed the law that controlled the defendant's motion to dismiss, and we do not apply today's change in the law to eradicate a vested right to a speedy trial defense.
The parties do not dispute the facts of this case. Beginning in May 2009, two investigators with the Johnson County District Attorney's Office began a year-long investigation into Spencer Gifts, LLC, which is a retail business in Oak Park Mall generally open to the public. Over the course of about 30 different visits, the investigators noted that Spencer Gifts displayed various items of a potentially obscene nature: for example, sex toys, lewd clothing, posters of nude women, and wind-up toys simulating sexual acts. Often these adult-oriented displays were in the vicinity of other items geared more toward youth, such as Teenage Mutant Ninja Turtle merchandise, Sesame Street clothing, and Twilight movie posters. During their visits, the investigator observed numerous minor customers enter the store.
On May 16, 2010, the investigators executed a search warrant and seized various retail items as evidence. And on October 6, 2010, the State charged Spencer Gifts with 10 counts of promoting obscenity harmful to minors. That same day, the district court issued a summons ordering Spencer Gifts to appear. Important to the case now before us, throughout the proceedings Spencer Gifts was never subject to an appearance bond.
Years later, Spencer Gifts filed a motion to dismiss alleging a statutory speedy trial violation. The district court held a hearing and ultimately denied the motion by concluding that statutory speedy trial did not apply both because Spencer Gifts was a business entity and because it was never on bond. The speedy trial issue arose again, however, during a subsequent pretrial conference before a different judge. After arguments, the then-presiding district judge concluded Spencer Gifts was statutorily entitled to a speedy trial under Bollacker
and its progeny and the State had failed to honor that right. As a result, the district judge dismissed the State's case.
The State appealed the dismissal to the Court of Appeals. The Court of Appeals affirmed the dismissal in a split decision, with the majority relying on precedent from this court. Spencer Gifts , 51 Kan.App.2d at 444, 348 P.3d 611
. The concurring judge agreed binding precedent from this court dictated the outcome of the case. But the concurring opinion noted contradictions in this court's treatment of statutory speedy trial and read the plain language of the speedy trial statute to contradict the precedent upon which the majority relied. 51 Kan.App.2d at 444–50, 348 P.3d 611 (Malone, C.J., concurring). We granted the State's petition for review. K.S.A. 2015 Supp. 22–3602(e).
The State presents four alternative contentions in arguing the district court erred in dismissing the case for a statutory speedy trial violation under K.S.A. 2015 Supp. 22–3402(b)
: (1) The statute did not apply to Spencer Gifts because it had not been held on an appearance bond; (2) any contrary holding in Bollacker should be overturned; (3) Spencer Gifts did not have speedy trial rights because it is a corporation; and (4) dismissal is not required under the provisions of K.S.A. 2015 Supp. 22–3402(g) (). We address each argument in turn.
does not apply to a defendant not held to answer on an appearance bond.
As evident from our previous discussion, tension exists between K.S.A. 2015 Supp. 22–3402(b)
and Bollacker. The statute, by its plain terms, limits its application to situations where a defendant has been “charged with a crime and held to answer on an appearance bond.” Yet the statute's reach was extended in Bollacker , 243 Kan. 543, 757 P.2d 311.
In that case, Lanning Bollacker became a criminal defendant when the City of Elkhart charged him with unlawful discharge of a firearm and served him with a complaint and a notice to appear. Bollacker appeared, and he was tried and convicted in municipal court. Bollacker appealed his conviction to the district court and, while on appeal, was never subject to an appearance bond. Despite the fact that Bollacker did not meet the bond requirement, the district court dismissed the charges because the trial did not occur within the time required by K.S.A. 22–3402(2)
(Ensley 1981).
The City of Elkhart then appealed the dismissal to this court, arguing the speedy trial statute did not apply because Bollacker was never held to answer on an appearance bond. Although acknowledging the statutory language about an appearance bond, this court found the lack of an appearance bond insignificant, mostly for general policy reasons: “[T]he legislature intended that persons charged with crime should be granted a prompt and speedy trial” in order to “prevent the oppression of a citizen by holding criminal prosecutions suspended over him for an indefinite time and to prevent delays in the administration of justice.” 243 Kan. at 545, 757 P.2d 311
; State v. Pendergrass , 215 Kan. 806, 807, 528 P.2d 1190 (1974) (). In addition, the Bollacker court noted a defendant served with a notice to appear is under the threat of arrest for failing to appear, just like a defendant held on an appearance bond. Ultimately, the court held 22–3402 applicable “whether bond is required or whether the accused is simply served with a notice to appear and is thus required to appear without posting bond.” 243 Kan. at 546, 757 P.2d 311.
thus supports Spencer Gifts' position in this case. In dismissing the case against Spencer Gifts, the district court noted a more recent appellate decision that relied on Bollacker : State v. Palmquist , No. 103914, 2011 WL 767861 (Kan.App.) (unpublished opinion), rev. denied 292 Kan. 968 (2011). In Palmquist, a notice to appear secured the defendant's appearance in one case and a summons was issued in another—the defendant was never subject to an appearance bond. Nevertheless, the district court dismissed the case. On appeal, the majority relied on Bollacker and concluded that statutory speedy trial under K.S.A. 22–3402 applied and the district court had correctly dismissed the case. 2011 WL 767861, at *7.
The dissent in Palmquist
, however, would have held that “[a]bsent [the defendant] being held to answer on an appearance bond, the plain language of K.S.A. 22–3402(2) simply does not apply.” 2011 WL 767861, at *9 (Buser, J., dissenting). Although the dissent recognized Bollacker as precedent, it noted this court had recently emphasized “the duty of courts to follow plain and unambiguous statutory language.” 2011 WL 767861, at *7 (Buser, J., dissenting). And that emphasis, in the dissent's view, was an indication this court would interpret 22–3402(b) differently than it had in Bollacker. See State v. Ottinger , 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev....
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