In the Matter of A.B.
No. 122,685
IN THE SUPREME COURT OF THE STATE OF KANSAS
Opinion filed
SYLLABUS BY THE COURT
K.S.A. 2020 Supp. 21-5506(b)(1) (aggravated indecent liberties with a child) is not vague or overbroad for the reasons advanced in this case.K.S.A. 2020 Supp. 21-5507 (unlawful voluntary sexual relations) does not require the offender be older than the other participant in the sexual relations criminalized by the statute.- In re E.R., 40 Kan. App. 2d 986, 197 P.3d 870 (2008) (holding a juvenile offender convicted of
K.S.A. 21-3522 , the precursor statute toK.S.A. 2020 Supp. 21-5507 , must be “under age 19 and older than the child by some period less than 4 years“), is overruled.
Appeal from Clay District Court; JOHN F. BOSCH, judge. Opinion filed April 2, 2021. Reversed and remanded.
Richard E. James, county attorney, argued the cause and was on the brief for appellant Stаte of Kansas.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the brief for appellee
The opinion of the court was delivered by
BILES, J.: This controversy arises after the State charged a then 14-year-old girl with aggravated indecent liberties with a child for having sexual relations with a then 14-year-old boy. The State had tried first to prosecute her for a less severe crime under
We hold the aggravated indecent liberties statute is not vague or overbroad for the reasons advanced in this case. We also hold the statute does not violate equal protection as applied because the underlying premise for that claim is the Court of Appeals ruling in E.R., which incorrectly interpreted the precursor to
FACTUAL AND PROCEDURAL BACKGROUND
In January 2019, a Clay County Sheriff‘s Deputy investigated a juvenile rape that allegedly occurred two years earlier. The suspect was a juvenile male, T.C., and the alleged victim was K.G., a juvenile female. The deputy interviewed her, asking if she told anyone about the incident around the time it had occurred. She mentioned A.B., another juvenile female and the defendant in this appeal. The deputy interviewed A.B., who acknowledged she also had sex with T.C. That prompted the State to initiate proceedings against her.
The State first charged A.B. as a juvenile with unlawful voluntary sexual relations, a severity level 8 person felony. See
Rather than appeal that dismissal, the State recharged A.B. with the more severe crime of aggravated indecеnt liberties with a child, a severity level 3 person felony. See
“That between the 1st day of May, 2015, and the 31st day of December, 2015, [A.B.], within Clay County, Kansas, did then and there being unlawfully and willfully, engage in sexual intercourse with a child who was 14 years of age but less than 16 years of age at the time of the act, to-wit: engaged in sexual intercourse with T.C., d/o/b 2001, AGGRAVATED INDECENT LIBERTIES WITH A CHILD, in violation of
K.S.A. 21-5506(b)(1) , an Severity Level 3 Person felony when committed by an adult.”
T.C.‘s date of birth is January 9, 2001. A.B.‘s date of birth is September 21, 2001. During the dates alleged in the charge, T.C. “would have been bеtween the ages of 14 years and 4 months and 14 years and 11 months of age,” and A.B. “would have been
The district court agreed with each claim, although it failed to elaborate on its reasoning. In an aside, the court commented: “I will expect the State to appeal . . . so hopefully the Court оf Appeals or the Supreme Court can address this issue and give us some direction for the sake of being fair to everybody involved in such activities.”
The State directly appeals to this court. Jurisdiction is proper. See
ANALYSIS
The straightforward issue is
Standard of review
The standard of review for all three constitutional issues is well known:
“Whether a statute is constitutional is a question of law subject to unlimited review. This court presumes that statutes are constitutional and resolves all doubts in favor of passing constitutional muster. If there is any reasonable way to construe a statute as constitutionаlly valid, this court has both the authority and duty to engage in such a construction. [Citations omitted.]” State v. Bollinger, 302 Kan. 309, 318, 352 P.3d 1003 (2015).
A.B.‘s vagueness claim
A.B. asserts
The test to determine whether a criminal statute is unconstitutionally vague is typically stated as follows:
“A statute is unconstitutionally vague if it fails to give adequate warning of the proscribed conduct, that is to say, that it ‘fails to provide a person of ordinary intelligence fair notice of what is prohibited.’ A statute is also unconstitutionally vague if it fails to protect against arbitrary enforcement. Violation of either aspect of these predictability requirements is grounds for invalidating a statute.
“Thus, the test to determine whether a criminal statute is so vague as to be unconstitutional entails two related inquiries: (1) whether the statute gives fair warning to those potentially subjеct to it, and (2) whether it adequately guards against arbitrary and unreasonable enforcement. ‘At its heart the test for vagueness is a commonsense determination of fundamental
fairness.’ [Citations omitted.]” Bollinger, 302 Kan. at 318.
During oral argument to this court, A.B.‘s counsel clarified the vagueness challenge derives from the statute‘s application to her, as opposed to a general facial argument. We approach the argument from that perspective.
But we must first note an issue preservation problem because A.B.‘s claim to the district court was limited to the fair-warning prong. She claimed:
The fair-notice prong and the arbitrary-enforcement prong are different. See State v. Harris, 311 Kan. 816, Syl., 822, 467 P.3d 504 (2020) (declaring
Our general preservation rule prevents asserting a new legal theory for the first time on appeal, even though it is a prudential rule and not a jurisdictional requirement. State v. Frye, 294 Kan. 364, Syl. ¶ 2, 277 P.3d 1091 (2012). And in her appellate brief, A.B. does not explain why her second-prong argument fits an exception to the general preservation rule. See State v. Gonzalez, 311 Kan. 281, 295, 460 P.3d 348 (2020) (listing the three exceptions). We also note A.B. makes no effort in her briefing to comply with Supreme Cоurt Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 35) (“If the issue was not raised below, there must be an explanation why the issue is properly before the court.“). We hold the second-prong theory is not properly preserved. A.B. focused on the first prong in the district court, and there is no basis to discern the court relied on anything else when declaring
Concentrating on A.B.‘s first-prong argument, we begin with the statute.
The State disagrees for two reasons. First, it argues
But A.B.‘s arguments fail all the same.
A.B.‘s contention is necessarily premised on a supposition that “[the] statute was never intended to encompass [a younger juvenile, like A.B.].” And she offers no authority to show why this conjecture might be sound despite a lack of supporting authority. This is akin to failing to meet the high burden needed to show why this statute is unconstitutionally vague. See State v. Gibson, 299 Kan. 207, 222, 322 P.3d 389 (2014) (simply pressing point is not enough); State v. Armstrong, 276 Kan. 819, 821-22, 80 P.3d 378 (2003) (statute‘s constitutionality is presumed, and party challenging a statute‘s constitutionality bears “high burden“).
Similarly, A.B.‘s failure to point out any statutory term or phrase rendering subsection (b)(1) impermissibly vague presents another critical shortcoming. See, e.g., Johnson v. United States, 576 U.S. 591, 593, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015) (the residual clause “any felony that ‘involves conduct that presents a serious potential risk of physical injury to another‘” in the Armed Career Criminal Act was challenged as vague); Harris, 311 Kan. at 824 (the statutory phrase “any other dangerous or deadly cutting instrument of like character” in
We hold
A.B.‘s overbreadth claim
A party challenging a statute as overbroad bears the burden to establish: (1) constitutionally protected activity is a significant part of the statute‘s target, and (2) there is no satisfactory method to sever the statute‘s constitutional applications from its unconstitutional applications. State v. Boettger, 310 Kan. 800, 804, 450 P.3d 805 (2019), cert. denied 140 S. Ct. 1956 (2020). See generally United States v. Sineneng-Smith, 590 U.S. __, 140 S. Ct. 1575, 1585, 206 L. Ed. 2d 866 (2020) (Thomas, J., concurring) (“In fact, it appears that the Court‘s void-for-overbreadth rule developed as a result of the vagueness doctrine‘s application in the First Amendment context.“); State v. Hughes, 246 Kan. 607, 616, 792 P.2d 1023 (1990) (“Nevertheless, the overbreadth doctrine has been applied by the United States Supreme Court where the operation of a statute infringes on freedoms guaranteed by the Bill of Rights, where those freedoms involvе privacy rights and medical matters.” [Emphasis added.]).
As to the first prong, A.B. initially argued in the district court that “[s]exual intercourse is certainly a protected activity in any person‘s right to privacy,” and so the statute “is designed to infringe on the right of privacy of young teenagers by preventing them from engaging in consensual sexual intercourse.” (Emphasis added.) But during the motion hearing, she shifted positions to claim the statute encompasses “her committing an offense that was not the intent of the legislature.” (Emphasis added.) These two views are confusing at best, but ineffective regardless. A.B. fails to show her conduct was constitutionally protected.
In Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), the United States Supreme Court held ”adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle . . . are entitled to respect for their рrivate lives.” (Emphasis added). And the Court held state government cannot “mak[e] their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.” 539 U.S. at 578. But while “the right to privacy in connection with decisions affecting procreation extends to minors as well as to adults,” that alone does not support A.B.‘s premise that younger teenagers’ sexual intercourse with their close-in-age mates is constitutionally protected. See Carey v. Population Servs. Int‘l, 431 U.S. 678, 693, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977). And in Limon, 280 Kan. at 296, this court noted “[u]ndoubtedly, the State has broad powers to protect minors. . . . ‘[I]n the area of sexual mores, as in other areas, the scope of permissible state regulation is broader as to minors than as to adults.‘” (Emphasis added.)
A.B. mentions Aid for Women v. Foulston, 427 F. Supp. 2d 1093 (D. Kan. 2006), as supporting her argument, but it is unclear why. In that case, the United States District Court for the District of Kansas held the mandatory reporting statute,
Aid for Women might mean that minors under 16 have some privacy right in information concerning their voluntary sexual activity with an age mate, but its connection to A.B.‘s case is elusive because
Finally, A.B. references a scattering of other Kansas, federal, and other state cases, but does not explain why they support her claim that minors who are 14 or 15 have a constitutional right to sexual intercourse with their age mates. See, e.g., Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797 (1979) (minors’ abortion right under federal Constitution); Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, 440 P.3d 461 (2019) (women‘s abortion right under Kansas Constitution); Planned Parenthood Affiliates v. Van de Kamp, 181 Cal. App. 3d 245, 226 Cal. Rptr. 361 (1986) (statutory duty to repоrt sexual activity of minors under 14); B.B. v. State, 659 So. 2d 256 (Fla. 1995) (privacy right of minors who are 16 under Florida Constitution). Given their dubious connection to her case and the lack of explanation, we
A.B.‘s as-applied equal protection claim
The district court‘s determination that
The court observed: “[T]he last thing we want is to have our judicial system appear to be unfair, [and] treat people unequally, in violation of their equal protection rights.” In other wоrds, T.C. got the “benefit” of the less severe Romeo and Juliet law,
Our three-step equal protection analysis is well known.
“[1] When the constitutionality of a statute is challenged on the basis of an equal protection violation, the first step of analysis is to determine the nature of the legislative classifications and whether the classifications result in arguably indistinguishable classes of individuals being treated diffеrently. . . . [2] After determining the nature of the legislative classifications, a court examines the rights which are affected by the classifications. The nature of the rights dictates the level of scrutiny to be applied—either strict scrutiny, intermediate scrutiny, or the deferential scrutiny of the rational basis test. [3] The final step of the analysis requires determining whether the relationship between the classifications and the object desired to be obtained withstands the applicable level of scrutiny.
“In regаrd to the first step . . . an individual complaining of an equal protection violation has the burden to demonstrate that he or she is ‘similarly situated’ to other individuals who are being treated differently [by the Legislature.] [Citations omitted.]” State v. Salas, 289 Kan. 245, 248-49, 210 P.3d 635 (2009).
We need go no further than the first step because A.B.‘s argument cannot support an equal protection violation unless its underlying catalyst is valid, i.e., the Court of Appeals correctly decided E.R. because the age differential that court read into the Romeo and Juliet law creates the classification A.B. now challenges. “The function of the Equal Protection Clause . . . is simply to measure the validity of classifications created by state laws.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 59, 93 S. Ct. 1278, 1310, 36 L. Ed. 2d 16 (1973) (Stewart, J., concurring). It follows, then, that if
It helps to understand the interplay between
“(a) Unlawful voluntary sexual relations is:
(1) Engaging in any of the following acts with a child who is 14 or more years of age but less than 16 years of age:
(A) Voluntary sexual intercourse;
. . . .
(2) when the offender is less than 19 years of age;
(3) when the offender is less than four years of age older than the child; [and] (4) when the child and the offender are the only parties involved.”
K.S.A. 2020 Supp. 21-5507 .
In E.R., a 12-year-old boy was adjudicated under the then-current Romeo and Juliet law for his conduct with a 14-year-old girl. The State claimed the boy was properly charged because he was necessarily less than four years older than the girl. On appeal, the panel was asked to interpret the statutory language that “the offender is . . . less than four years of age older than the child.” This is basically the same language relevant in A.B.‘s case. E.R., 40 Kan. App. 2d at 987;
But the panel‘s reading creates an absurd result by exposing the younger participant to liability only for a more serious offense—as happened to A.B. We see no rational or reasonable basis why the Legislature would desire that outcome by creating an age classification with a more severe punishment for this particular conduct, and the statutory language doеs not dictate that outcome.
When interpreting a statute, a court first attempts to discern legislative intent through the statutory language, giving common words their ordinary meanings. The court gives effect to the statute‘s express language, rather than determining what the law should be, when that language is plain and unambiguous. And courts will not speculate about legislative intent and will not read the statute to add something not readily found in it. State v. Ayers, 309 Kan. 162, 163-64, 432 P.3d 663 (2019). The E.R. panel did not follow these well-established statutory interpretation rules.
The statute‘s text is clear that “the offender is less than four years of age older than the child,” not “older than the child by some period less than 4 years.” The E.R. panel improperly delved into a guessing game about legislative intent and ended up adding something not readily found in the statute, i.e., an extra element that the offender must always be ”older than the child by some period less than 4 years.” 40 Kan. App. 2d at 988. We overrule E.R. because it incorrectly interprets the Romeo and Juliet law,
By overruling E.R., it is unnecessary to continue with A.B.‘s equal protection claim. Thе interplay of the two statutes creates no legislative classifications that “result in arguably indistinguishable classes of individuals being treated differently.” Salas, 289 Kan. at 248.
Reversed and remanded.
* * *
STEGALL, J., concurring: I write separately because the majority continues to state the now-shaky “clear error” or “presumption of constitutionality” standard of review for constitutional questions. See slip op. at 5. A majority of this court has already rejected the presumption of constitutionality in cases implicating purportedly “fundamental interests.” See Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, Syl. ¶ 20, 440 P.3d 461 (2019) (“In a case involving a suspect classification or fundamental interest, the courts peel away the protective presumption of constitutionality and adopt an attitude of active and critical analysis, subjecting the classification to strict scrutiny.“). Is today‘s majority suggesting the right not to be convicted under a vague law is a second-class right? What about the right to equal protection under the law?
For myself, I have previously stated that “I cannot agree with the proрosition that we ought to exercise different standards of review depending on which part of the Constitution
I concur with today‘s outcome and fully join the rest of the majority opinion because even under a less deferential standard of review, the outcome and reasoning remain unchanged.
WALL, J., joins the foregoing concurrence.