City of Wichita v. Trotter
494 P.3d 178
| Kan. Ct. App. | 2021Background
- In 2018 Wichita cited Arlando Trotter for operating (1) an unlicensed "after-hours establishment" (W.M.O. 3.06.030.A) and (2) an unlicensed entertainment establishment (W.M.O. 3.30.030.A); municipal court convicted him on both counts.
- Trotter appealed to district court; his municipal convictions were conditionally vacated pending de novo review and jury trial.
- W.M.O. 3.06.020 defines “after-hours establishment” as a venue open between midnight and 6:00 a.m. that hosts recurring events where the public gathers, with a nonexhaustive list of factors (two of which constitute prima facie evidence). Several express exceptions exist (e.g., hotels, private homes with specifically invited guests, certain licensed businesses).
- The district court dismissed both municipal charges, concluding the after-hours licensing scheme was unconstitutionally overbroad (and speculatively discussing Fourth and Fourteenth Amendment problems), relying largely on hypothetical applications.
- On appeal the City challenged dismissal; the Court of Appeals held it lacked jurisdiction to consider several of the district court’s sua sponte Fourth/Fourteenth Amendment rulings and reversed the dismissal, finding the overbreadth ruling erroneous and remanding for jury trial on both charges.
Issues
| Issue | Plaintiff's Argument (Trotter) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Standing to challenge ordinance as unconstitutionally vague | Trotter argued vagueness; sought dismissal | City did not cross-appeal district court’s standing ruling | Not reviewed on appeal (Trotter did not cross-appeal); appellate court lacks jurisdiction to consider it |
| Whether district court could decide Fourth/Fourteenth Amendment claims without license application | Trotter argued inspection/fee provisions violated those rights | City argued Trotter lacked standing because he never applied for a license | Appellate court: district court lacked jurisdiction to rule on these claims; Trotter lacked standing to raise them preemptively |
| Whether dismissal of separate entertainment-establishment charge (W.M.O. 3.30.030.A) was proper based on 3.06.030.A | Trotter treated dismissal as tied to after-hours ruling | City argued district court lacked authority to dismiss unrelated charge | Reversed: district court erred in dismissing the W.M.O. 3.30.030.A. charge; appellate court sua sponte corrected error and remanded |
| Whether W.M.O. 3.06.030.A is unconstitutionally overbroad/violates First Amendment assembly right | Trotter: ordinance criminalizes protected assemblies (hypotheticals: midnight masses, dorm gatherings, private homes) and is vague/overbroad | City: ordinance is content-neutral, aimed at safety/nuisance control, has exemptions, licensing standards, appeals and does not target expression | Held: ordinance is not substantially overbroad; district court erred by relying on hypotheticals and failing to apply the governing overbreadth and standing tests. Reversed and remanded for jury trial. |
Key Cases Cited
- Williams v. State, 299 Kan. 911 (2014) (sets Kansas test for overbreadth and standing differences between facial First Amendment and as-applied challenges)
- Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine must be applied sparingly; substantial overbreadth required)
- FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (licensing regimes that impose prior restraints on expression must meet strict standards)
- Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (facial challenges permitted where licensing statute vests unbridled discretion)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (analysis distinguishing content-based and content-neutral regulations)
- Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (time, place, manner test and leaving open ample alternative channels)
- Thomas v. Chicago Park District, 534 U.S. 316 (2002) (standards for licensing prior restraints, including definite standards and appeal mechanisms)
- Airport Commission v. Jews for Jesus, Inc., 482 U.S. 569 (1987) (facial overbreadth requires realistic danger of significant compromise to First Amendment protections)
- National Amusements, Inc. v. Town of Dedham, 43 F.3d 731 (1st Cir. 1995) (upholding time-based restrictions on entertainment venues against overbreadth challenge)
- Richland Bookmart, Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998) (rejecting overbreadth challenge to hour-of-operation restrictions on adult businesses)
- Creecy v. Kansas Dept. of Revenue, 310 Kan. 454 (2019) (standing is component of subject-matter jurisdiction; requires cognizable injury for as-applied Fourth Amendment challenges)
- Meats v. Kansas Dept. of Revenue, 310 Kan. 447 (2019) (procedural-due-process ruling on indigency waiver; cited by district court but not decided as applied here)
- City of Wichita v. Trotter, 58 Kan. App. 2d 781 (2020) (earlier Trotter decision holding lack of standing to challenge inspection requirements absent license application)
- Lumry v. State, 305 Kan. 545 (2016) (cross-appeal rules and jurisdictional limits on issues not cross-appealed)