WILLIAM DON BOATRIGHT, Appellee, v. KANSAS RACING COMMISSION, Appellant, and RODNEY L. BOATRIGHT, Appellee, v. KANSAS RACING COMMISSION, Appellant.
No. 67,050
Supreme Court of Kansas
filed May 22, 1992.
834 P.2d 368
Warran D. Wiebe, assistant attorney general, argued the cause and was on the brief for appellant.
H. Douglas Pfalzgraf, of Pfalzgraf Law Offices, of Wellington, argued the cause and was on the brief for appellee Rodney L. Boatright.
Michael E. Cleary, of Miller & Cleary Law Offices, of Wichita, argued the cause, and Vern Miller, of the same firm, was with him on the brief for appellee William Don Boatright.
The opinion of the court was delivered by
HERD, J.: This is an appeal from the district court‘s judicial review of an administrative proceeding by the Kansas Racing Commission (Commission) to cancel the occupation racing licenses of William Don Boatright and Rodney L. Boatright. The Commission found the Boatrights used live lures to train racing greyhounds in violation of
Both parties use the same greyhound training procedure, which begins when the hounds are pups and continues until they arrive at the racetrack. The training starts with permitting the young greyhounds to chase live jackrabbits in a large field. Next, the greyhounds are allowed to chase live rabbits hooked to a mechanical arm which circulates around a small track called the “wheel.” In the final training phase, the greyhounds are taught to run on a “schooling” or “training” track. This phase also involves the use of a live rabbit on a mechanical arm. The rabbits are used until killed by the greyhounds. When training is completed the greyhounds are shipped to the various racetracks.
The Commission instituted separate administrative actions against the Boatrights, alleging they had violated
Each party petitioned the Sedgwick County District Court for review of the Commission‘s order. The cases were consolidated. The district court held
The district court also held in the alternative that the term racing greyhound is unconstitutionally vague under both the criminal and business standard of review and, therefore, does not apprise a reasonably prudent person of the act prohibited. This appeal followed.
The first issue for our consideration on appeal is whether
It is axiomatic that a statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. Guardian Title Co. v. Bell, 248 Kan. 146, 149, 805 P.2d 33 (1991).
There are two standards for determining whether a statute is unconstitutionally vague. The criminal standard requires a determination of whether the statute‘s
“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.” Hearn v. City of Overland Park, 244 Kan. 638, 642, 772 P.2d 758, cert. denied 493 U.S. 976 (1989).
Statutes regulating business are afforded greater leeway than criminal statutes. We have stated:
“A common-sense determination of fairness is the standard for determining whether a statute regulating business is unconstitutional for vagueness, i.e., can an ordinary person exercising common sense understand and comply with the statute? If so, the statute is constitutional.” Guardian Title Co. v. Bell, 248 Kan. at 150 (citing Harris v. McRae, 448 U.S. 297, 311 n.17, 65 L. Ed. 2d 784, 100 S. Ct. 2671, reh. denied 448 U.S. 917 [1980]).
The Commission argues the business standard should apply here because
The jockey appealed, claiming the Board erred by not using the criminal standard of proof because the alleged conduct could subject him to both civil and criminal penalties. The court determined the civil standard was proper because the Board was limited to penalizing the economic interests of the jockey by suspending his racing license and did not have authority to issue criminal penalties against the jockey. 110 Ill. App. 3d at 1000-03.
Feliciano, does not involve the issue of whether a statute is unconstitutionally vague. Moreover, this court has already determined that if a statute could subject a person to both criminal and administrative actions, as
The parties cite numerous witnesses who testified differently as to the interpretation of the statute. Kansas Representative Jack Lacey; Herb Koerner, president of the National Greyhound Association; and Richard Nelson, president of the Kansas Greyhound Association, testified that their interpretation of
We hold the language of
Now let us take up the second issue, which is interpretation of
Courts must follow several rules when interpreting statutes.
In State v. Haug, 237 Kan. 390, 699 P.2d 535 (1985), this court was asked to interpret
“Nowhere in
K.S.A. 21-4619 is there any reference to the expungement of anything other than records of convictions. The statute is clear and unambiguous in this regard and is not open to construction or speculation as to the legislative intent behind it. It has long been the rule in Kansas that in determining whether a statute is open to construction, or in construing a statute, ordinary words are to be given their ordinary meaning and courts are not justified in disregarding the unambiguous meaning. State v. Gibson, 8 Kan. App. 2d 135, 137, 651 P.2d 949 (1982); State v. Howard, 221 Kan. 51, 54, 557 P.2d 1280 (1976). Even a penal statute subject to strict construction should not be read so as to add that which is not readily found therein, or to read out what, as a matter of ordinary language, is in it. State v. Logan, 198 Kan. 211, 213, 424 P.2d 565 (1967).” 237 Kan. at 391-92.
Further, “[i]t is presumed the legislature understood the meaning of the words it used and intended to use them; that the legislature used the words in their ordinary and common meaning; and that the legislature intended a different meaning when it
Applying these rules of construction, we first note the term racing greyhound is not defined within the Act. Clearly the legislature meant to regulate the racing of greyhounds.
The Boatrights contend this interpretation is proper. The Commission, however, argues its interpretation of “racing greyhounds” should be given judicial deference under the doctrine of operative construction because the Commission is the agency charged with enforcing the Kansas Parimutuel Racing Act. Under the doctrine of operative construction, the court will give deference to the agency‘s interpretation of the law although the court may substitute its judgment for that of the agency‘s. This court has stated:
“‘The ruling of an administrative agency on questions of law, while not as conclusive as its findings of facts, is none the less persuasive and given weight, and may carry with it a strong presumption of correctness, especially if the agency is one of special competence and experience.’ [quoting 2 Am. Jur. 2d, Administrative Law § 676, p. 556.] If, however, the reviewing court finds that the administrative body‘s interpretation is erroneous as a matter of law, the court should take corrective steps; the determination of an administrative body of questions of law is not conclusive, and, while persuasive, is not binding on the courts.” Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 810, 667 P.2d 306 (1983).
The Commission also argues legislative history supports its interpretation of the statute. Originally, H.B. 2044 did not contain a provision prohibiting the use of animals in the training of grey-
The Commission cites Attorney General opinion No. 87-150 for support of its interpretation of
We agree with the Attorney General‘s opinion and hold the legislative intent in enacting
We hold the Boatrights violated
The judgment of the district court is reversed.
ABBOTT, J., dissenting: The Boatrights are being deprived of their livelihood by a vague, ambiguous term, “racing greyhounds,” as used in
Everyone agrees “racing greyhounds” means something different than “greyhounds.” The majority relies on legislative history and an attorney general‘s opinion to conclude that the legislature intended to distinguish “racing greyhounds” from “hunting greyhounds.” This is not the only distinction that can be made. Greyhounds, even those from the same litter, can become household pets, hunting greyhounds, greyhounds that ultimately run in competition at race tracks, and greyhounds used for breeding purposes.
Even while applying the stricter criminal standard, the majority, by necessity, makes all registered greyhounds “racing greyhounds” until a determination is made by someone that the greyhound is a pet, a hunter, or to be used for breeding purposes. A reader of the statute is left to guess who makes the decision and when it can or must be made.
The issue before this court is how an ordinary person, who wants to train greyhounds, would construe “racing greyhounds,” as used in
Unlike the majority, I do not know what “racing greyhounds” means, and, if it was relevant, I am not sure what the legislature intended by using the term “racing greyhounds.” I suspect different legislators had different views about what the term means. For example, at least one legislator testified he thought the statute in question applied only to greyhounds racing at an authorized track. The 1987 House Journal states that one legislator explained his vote in favor of the parimutuel bill by saying, “Mr. Speaker, until I determined that the ban on live lures language in H.B. 2044 applied only to those dogs racing on tracks for purses, I could not vote for the parimutuel bill.” House J. 1987, p. 1142.
What does the industry understand “racing greyhounds” to mean? The president of the National Greyhound Association, a greyhound business owner for over 30 years, testified that a “racing greyhound is a registered greyhound that his papers have been turned in and he has been schooled and officially and has qualified at a licensed parimutuel race track.” He further testified that prior to the above time, the dog “would just be a registered greyhound,” not a “racing greyhound.”
The president of the Kansas Greyhound Association also testified. He has been an owner/operator of greyhound kennels for 28 years. He stated: “The definition of a racing greyhound is a greyhound that is either itself present on the track or the papers are at least turned into the track. Then it comes under the control of the jurisdiction of the race commission.”
The Racing Commission investigator testified:
“Q. Okay, where at and, again, I want to know, since you‘re an investigator, at what moment in time does that greyhound that‘s registered, the first part of your equation‘s been met, when does it become a racing greyhound in Kansas?
“A. Again, it would depend on the individual training of the dog and at what track that maybe he wants to send it to.
“Q. So your testimony is that it varies; is that correct?
“A. That would be correct.
“Q. And it varies from dog to dog and instance to instance, doesn‘t it?
“A. Yes, sir.
“Q. And that‘s the present state of Kansas law, at least under your understanding?
“A. Yes, sir.
“Q. Okay. It‘s not a very stable definition, is it?
“A. That‘s—I can‘t answer that.
“Q. Okay. If a dog is 3 years old—and we can come up with all kinds of hypotheticals, but I just want an idea—if a dog is 3 years old and it‘s never been to the track but it‘s been trained to go to the track, is it a racing greyhound?
“A. Yes. You know, again, it depends on who, what, and where.
“Q. And it depends on—on your definition, doesn‘t it? In other words, it‘s very subjective as to what the intent is, according to you?
“A. Yes, sir.
“Q. It‘s not a fixed standard, is it?
“A. No, sir.”
It appears to me the “experts” in the field believed the legislature did not intend to make what the Boatrights did a crime. Certainly, the investigator for the Racing Commission did not think the statute gave clear guidelines. The legislature could have reached the result the majority does by stating “in the racing or training of greyhounds to race.” The language used does not give an adequate warning to those in the greyhound industry of what conduct is prohibited.
The attorney general‘s opinion cited by the majority is not persuasive. It is devoted to defining training and never mentions the issue I find dispositive. The opinion concludes that, because training has its obvious meaning, the use of live lures is prohibited in teaching greyhounds to be racing greyhounds, regardless of racing experience. The opinion is not sound, is not persuasive, and is no authority for the majority‘s conclusion.
In conclusion, there is no commonly accepted definition of “racing greyhounds” in the industry or from other states. (Some states define “racing greyhounds” by statute or agency regulations.) Additionally, the Racing Commission‘s jurisdiction is over racing. The Commission has no jurisdiction over dogs until they arrive at the track or papers are submitted to the track. Article 88 of chapter 74 specifically states that the Kansas Parimutuel Racing Act, including the statute in question,
LOCKETT and ALLEGRUCCI, JJ., join the foregoing dissenting opinion.