State v. Weniger

• Decision Date: 13 September 1984
• Docket Number: No. 56089,56089
• Citation: 687 P.2d 643,9 Kan.App.2d 705
• Parties: STATE of Kansas, Appellee, v. Clyde E. WENIGER and Bonnie Weniger, Appellants.
• Court: Kansas Court of Appeals

Page 643

687 P.2d 643

9 Kan.App.2d 705

STATE of Kansas, Appellee, v. Clyde E. WENIGER and Bonnie Weniger, Appellants.

No. 56089.

Court of Appeals of Kansas.

Sept. 13, 1984.

Review Denied Nov. 9, 1984.

Syllabus by the Court

1. A defendant is required to raise the defense of discriminatory and selective law enforcement in a pretrial motion. K.S.A. 22-3208(3).

2. The failure to present the defense of discriminatory and selective law enforcement in the manner set forth in K.S.A. 22-3208(3) constitutes a waiver of that defense unless the court for cause shown grants relief from the waiver.

3. Discriminatory prosecution is generally recognized to constitute a valid defense to a criminal charge.

4. A defendant alleging discriminatory prosecution must show that others similarly situated are not generally prosecuted for conduct similar to that for which defendant is being prosecuted, and that the defendant has been intentionally and purposefully singled out for prosecution on the basis of an arbitrary or invidious criterion.

5. It is presumed that a public official will act fairly, reasonably and impartially in the performance of the duties of one's office.

6. An accused to whom a statute may constitutionally be applied cannot challenge that statute on the ground that it may conceivably be applied unconstitutionally in situations not before the court.

7. Rules relative to determination of statutes and ordinances are restated.

8. In an action challenging the constitutionality of Sedgwick County Resolution 79-1975 which requires junkyards to be screened, it is held: The trial court did not err in determining (1) that the defendant failed to raise the defense of discriminatory and selective law enforcement in a pretrial motion; (2) that Sedgwick County did not engage in discriminatory prosecution; and (3) that the resolution was not overbroad and vague.

S.A. (Tim) Scimeca, Wichita, for appellants.

Byron L. Sloan, Asst. Dist. Atty., Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before BRISCOE, P.J., and ABBOTT and SWINEHART, JJ.

ABBOTT, Judge.

The defendants appeal their misdemeanor conviction for failing to screen a junkyard in violation of Sedgwick County Resolution 79-1975.

Defendants contend that the resolution is being enforced against them and no one else, thus it is discriminatory and selective law enforcement in violation of the Fifth and Fourteenth Amendments to the United States Constitution; and that the resolution, which adopts by reference Health and Sanitation Code No. 5 of the Wichita-Sedgwick County Department of Community Health, is overbroad and vague and in violation of the Fifth and Fourteenth Amendments of the United States Constitution.

The defendants did not raise the defense of discriminatory and selective law enforcement in a pretrial motion as is required by K.S.A. 22-3208(3), which constituted a waiver of objection. The trial court could have granted relief from the waiver for "cause shown," but the defendants offered no evidence why relief should be granted and the trial court found none. The defendants, by failing to file a pretrial motion addressing the issue, waived their right to raise this issue on appeal.

In any event, the record shows that the health department is gathering evidence preparatory to filing charges against others similarly situated. In addition, this junkyard is the only one for which the health department received citizens' complaints.

Our Supreme Court stated in State ex rel. Murray v. Palmgren, 231 Kan. 524, 528-29, 646 P.2d 1091 (1982):

"The discretion whether or not to prosecute has long been the sacred domain of the prosecutor and stems from the common law nolle prosequi. State v. Greenlee, 228 Kan. 712, 717, 620 P.2d 1132 (1980). Nevertheless, discriminatory prosecution is now generally recognized to constitute a valid defense to a criminal charge. Annot., 95 A.L.R.3d 280, 296.

"To be successful, a defendant alleging discriminatory prosecution must show: 1) Others who are similarly situated are not generally prosecuted for conduct similar to that for which defendant is being prosecuted, and 2) the defendant has been intentionally and purposefully singled out for prosecution on the basis of an arbitrary or invidious criterion. Annot., 95 A.L.R.3d at 287. See also Barton v. Malley, 626 F.2d 151, 155 (10th Cir.1980). The defense is solidly based on the Equal Protection Clause of the 14th Amendment. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Mere failure to enforce the law against other violators, however, does not establish a claim of discriminatory prosecution. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Gladen v. State, 196 Kan. 586, 590, 413 P.2d 124 (1966)."

The focal point of any discussion of discriminatory enforcement in Kansas is Gladen v. State, 196 Kan. 586, 413 P.2d 124 (1966), which cites Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). Our Supreme Court stated 196 Kan. 586 at page 590, 413 P.2d 124:

"Although factually distinguishable, the rationale of the Oyler decision was applied in Moss v. Hornig, 314 F.2d 89 (1963), which was an action brought under the civil rights act by a store proprietor to enjoin a state court prosecution charging violation of the Sunday closing law. Moss alleged an intentional and purposeful discrimination against him as an individual. Testimony was introduced showing that only two persons had been prosecuted in the entire state circuit during a one-year period despite the fact the prosecutor knew of other stores remaining open and yet failed to prosecute the individuals involved. The court, in holding that such facts were insufficient to constitute purposeful discrimination, said:

" 'Mere failure to prosecute other offenders is no basis for a finding of denial of equal protection. See United States v. Rickenbacker, 309 F.2d 462 (2 Cir.1962). To show that unequal administration of a state statute offends the equal protection clause one must show an intentional or purposeful discrimination. Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397 [401, 88 L.Ed. 497] (1944).' (p. 92.)

"In examining Gladen's motion, we have nothing other than the naked allegation that being sentenced under the habitual criminal act deprived him of equal protection and due process. Numerous statements in his brief about what may or may not have happened to other felons with prior convictions, even if properly before us, are insufficient, in light of the foregoing decisions, to render the statute, as administered, unconstitutional. There is a presumption that a public official will act fairly, reasonably and impartially in the performance of the duties of his office. Lyerla v. Lyerla, 195 Kan. 259, 403 P.2d 989; Sutherland v. Ferguson, 194 Kan. 35, 397 P.2d 335; State v. Emory, 193 Kan. 52, 391 P.2d 1013, cert. den. 379 U.S. 906, 85 S.Ct. 200, 13 L.Ed.2d 179."

The only evidence adduced at trial as to why these defendants were the first to come to trial was that they were in violation of the ordinance and theirs was the only junkyard for which the department had received citizens' complaints. There is no showing that the selection was deliberately and intentionally based upon an unjustifiable classification such as race, religion, sex or the exercise of the First Amendment right to free speech. State ex rel. Murray v. Palmgren, 231 Kan. at 528, 646 P.2d 1091; Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446; Gladen v. State, 196 Kan. at 589, 413 P.2d 124; Annot., 95 A.L.R.3d 280, 296. It is apparent from the record that the health department intends to prosecute more cases if this ordinance is upheld.

The defendants next argue that the ordinance and incorporated sanitation code is overbroad and vague. The challenged section reads:

" 'Salvage Yards' shall mean any premises used for: (a) Storage and/or sale or resale of used merchandise; or (b) the disassembly of wrecked or used automobiles for the reuse and/or sale of automobile parts; or (c) the storage and/or sale of various kinds of metal and/or used building materials."

The defendants admitted at trial that they clearly come under section (b) of the challenged definition. Their argument, however, goes to section (a).

A person to whom a statute may constitutionally be applied cannot challenge that statute on the ground that it may conceivably be applied unconstitutionally in situations not before the court. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508, reh. denied 458 U.S. 1133, 103 S.Ct. 20, 73 L.Ed.2d 1404 (1982); Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362, reh. denied 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982).

The defendants next argue that "site screening" is overly broad and vague. The health code defines site screening as "decorative fencing, evergreen vegetation, or landscaped earth berms maintained for the purpose of concealing from view the area behind such fence, evergreen vegetation or berms. When fencing is used for screening, it shall not be less than six nor more than eight feet in height."

The defendants then argue that persons of common intelligence would have to guess at the meaning of "decorative fencing" and "evergreen vegetation maintained for the purpose of concealing from view," and therefore the ordinance is unconstitutionally vague.

In Cardarella v. City of Overland Park, 228 Kan. 698, 702, 620 P.2d 1122 (1980), the Supreme Court, adopting the trial court's opinion, stated:

" 'Due process requires that criminal ordinances be reasonably definite as to the persons and conduct within their scope. In determining whether an ordinance is void-for-vagueness two inquiries are appropriate: (1) whether the ordinance gives fair warning to those persons potentially subject to it, and (2) whether...