*1 67,354 Nos. 67,355 Robert Kansas, v. Schlein Appellee, Charles State J. Burgoon, Appellants. W. 296) P.2d (854 Opinion filed June 1993. Gilman, Park, argued David R. of Overland and was on the cause appellants.
brief for Warner, cause, attorney, argued Michael and Paul assistant district Morrison, Stephan, attorney, general, and Robert T. attorney district J. appellee. were on the brief opinion of the court was delivered Lockett, Defendants Charles Schlein and Robert W. J.: J. Burgoon were each convicted of one count of in violation of K.S.A. (entering remaining “gambling in a place” bet). Burgoon intent to make a Schlein sep- each were arately days County sentenced to serve 30 Adult Johnson Detention Center and fined $150. claiming prove the State failed to appealed,
Both “gambling place.” Schlein remained was they had entered or *2 failed to define a the trial court’s instructions also claims that their convictions. The gambling place. Appeals Court reversed petition The State’s 2d App. granted. for review was Carmack, In- agent with the Kansas Bureau of special James at Woodlands racetrack
vestigation (KBI), discovered a flier the in- marathon tournament. The flier advertising poker an annual location, date, showing the and time the tournament map cluded a flier, agents in KBI played. would be On the date advertised investigated poker tour- police and Overland Park officers flier, in being nament held at the location stated a residential County, address in Kansas. Johnson Police wired with a transmitter and Jackson, detective John undercover, working went to the residence and asked the sus- organizer might if he in the tour- pected participate tournament $150, paid organizer entry nament. After an fee of Jackson adjoining half two-story he escorted next door to the was organizer duplex. suspected The tournament was the lessee of both Half of the as his premises. duplex occupied family through residence. walked lower level of the tour- Jackson going duplex, nament half of the from room to room. He observed dining and chairs in the and a only table room sofa and television living room. eight men were when Approximately present arrived. Jackson watched other individuals arrive. Each paid the $150 Jackson commence, entry waiting fee. While for the tournament to Jack- supplied organizer. son read information the tournament It fees, explained entry a breakdown of how the money would winners, paid poker games be what played, would be how round, betting much would be allowed in each the times the times, players playing, would be break and the rules of the tournament.
Eventually, including 22 people, Jackson, play assembled to poker. organizer gathered together, tournament the players The rules, explained assigned player each number corresponded to a chair on the second floor in player which the would be seated. card tables had Green-topped upstairs. then went players
The rooms. At each card upstairs of the three placed each been chips playing with numbers on them. Poker were chairs table furnishings other were the rooms. on each table. No cards were began rooms. He assigned his chair in one of the located Jackson using poker games players, other playing poker various looked, twice, into the left his chair other chips to bet. Jackson rooms, playing poker. other individuals two and observed midnight, signaled, after the other approximately At Jackson agents and the KBI entered the home and arrested (cid:127)police officers agents KBI seized several players. the tournament items, tables, including stacking four card a number of related chairs, cards, $1,777 poker
numerous boxes of chips, playing sheet, cash, survey a tournament "tournament rules and infor- sheets, Day and a etched with “St. Mar- trophy mation Patrick’s dating Championship” prior athon Poker and the winners’ names *3 back 1987. against Burgoon alleging were filed Schlein and
Complaints engaged gambling 21-4303(b). each had violation of K.S.A. trial, During Detective one time Schlein’s testified at Jackson patrolled he the area of Overland Park in which the residence gambling is located. admitted that he had never heard of Jackson taking place night on the of premises before the the tournament. knowledge his the property stated that to had never been Jackson previously gambling purposes. Special agent used Carmack testified he did not know whether the residence had been ever and, gambling prior poker used for to the tournament to his knowledge, premises gambling were used for on this only one occasion. evidence,
At the close of the State’s Schlein moved the trial judgment acquittal, asserting court for of the State had failed to prove he had entéred and remained in a place for the purpose making argued of a bet. Schlein the State had failed to prove that the had used as a previously been place. ruling
In on a judgment acquittal, judge motion for if a trial might concludes from the evidence that a reasonable mind fairly doubt, a guilty beyond decide defendant is a reasonable the mo- must go jury. tion be denied and the case must to the The trial reviewing court appeal, On
court denied Schlein’s motion. could have found the whether a rational factfinder must decide Crichton, beyond a reasonable doubt. State v. guilty accused 213, 218-19, (1988), denied 244 2d rev. App. Kan. Kan. 739 conference,
During jury objected Schlein instruction trial instruction on die elements of the crime of court’s proposed given. and his instruction be The trial court requested deliberations, objection. jury overruled After found Schlein’s guilty. Schlein court,
Burgoon did not a trial. In trial to the request jury Burgoon (1) and the stipulated poker State there was a tour- nament, cards, betting, playing which involved the and the exchange money place which took at house address Over- Park, Kansas; County, (2) land this was an unoc- Johnson tables, cupied duplex one-half of a which poker poker contained cards, schedules; chips, playing game (3) rules and poker part defendant took in the willfully tournament and he entered bet; in the- (4) remained house the intent to make a the winners of the prizes; tournament were to receive cash (5) prior this had been held in years tournament at various lo- stipulation cations. The also indicated the State had and would rules, offer as poker trophy, evidence names in- poker player cluding the Burgoon, name of Robert W. par- other written aphernalia. upon stipulation, Based the trial court found Burgoon guilty. appeal,
On the trial contends court erred in denying Schlein judgment his motion for of acquittal, Burgoon while contends the trial finding court erred in him guilty, because the State did not prove they “gambling place.” had entered a The defendants ar- *4 gued to the trial court there was no evidence the residence reputation gambling a as a place or that the residence had frequently was by persons
visited known to be gamblers. commercial The defendants asserted K.S.A. contemplates some- thing more evening than one gambling of at a location before the statute is violated.
Gambling entering is or remaining gambling in a with place bet, intent to make a participate to in a lottery, play or to a gambling 21-4303(b). “gambling device. K.S.A. A place” any is
209 vehicle, room, tent, which is used building, or location place, bets; receiving, settling following: making and any of bet; conducting forwarding bets or to or holding, recording, offers lotteries; place that the gambling devices. playing or Evidence that, or at or about gambling place a general reputation has a known frequently by persons it visited question, the time in . gambling gamblers frequenters or known as of commercial to be gambling whether it is is on the issue of places admissible 21-4302(5).. place. K.S.A. Schlein Appeals by to the Court of question presented in was whether evidence Burgoon appeals their consolidated gambling previously place had been used as a gambling with the intent required prove they place
is entered law, question of a statute is a Interpretation to make bet. give it to interpret is the function of the court a statute to legislature. Tenny, it the effect intended Martindale v. 1, (1992). ¶ Kan. P.2d Syl. 561 Penal statutes must sought be in strictly persons subject construed favor of to be Thompson, to them. State v. 701 P.2d 21-4302(5), “gam- The State contended K.S.A. which defines bling place,” quite scope- places is broad and is not limited to reputation gambling place. any that have a as a The State asserts gambling if place may qualify place where occurs as a being 21-4302(5). it is used for the purposes described argues The State that half of the duplex where the being being occurred was not used as a residence but was used solely for the puipose housing elaborately organized an mar- poker athon tournament. The State contends this sufficient “gambling evidence to show the defendants entered into a place” place the intent to a bet. The Court of observed that Appeals the definition of 21-4302(5) found K.S.A. is similar to the definition of gambling place 945.01(4)(a) (b) (1991), set forth Wis. Stat. § which states: tent, “(a) gambling place any building any (whether A or vehicle self- them, not)
propelled any any room within one of whose bets; any following: making settling receiving, holding, uses is *5 210 bet; lotteries; forwarding conducting playing
recording
to
or
or
bets or offers
gambling machines.
gambling place
“(b)
place
general
reputation
has a
as a
Evidence
that,
question,
frequently
by persons
in
it
or
at or about
the time
was
visited
professional
gamblers
frequenters
gambling
or known as
of
known to be
places
gambling place.”
whether
it is a
is admissible
on the issue of
(We
gambling, N.M.
prohibiting
note the New Mexico statute
(Michie
Stat. Ann.
when
a
Supp.),
defining
30-19-1.E
§
gambling place,
expressly requires proof
also
that one of the
gambling.)
uses of the
is
principal
Nixa,
In
(1984),
State v.
Wis. 2d
The Wisconsin
Appeals
Court of
observed that various terms
suggest
the statute
that prior gambling
activity
essential for
a location to be
gambling place.
considered a
definition
(a)
subsection
945.01(4)
Wis. Stat.
provides that a location
§
may be
considered a
if
place
one of its principal uses
gambling.
(b)
The court noted subsection
provides that evidence
showing
has a reputation
is frequently
gamblers
visited by
people
known
frequenters
places is admissible
question
on this
and concluded the term “one
implies
of whose
uses”
of similar use
pattern
on a
prior occasion or occasions.
The Nixa
Morrissy,
State v.
25 Wis. 2d
642-43,
(1964),
Our Court of Appeals observed that several of our sister states
have held that more than one occasion of gambling must be shown
to prove
premises
gambling
is a
place. For authority it cited
Cieri,
149, 151-52,
State v.
128 Conn.
20 A.2d
(1941) (“[T]he
733
use of place
a
to
it
render
a gambling house must be frequent,
customary, common or habitual
. .
single
. and a
act of gaming
is insufficient to
it
State,
constitute
a gaming house.”); Glisson v.
(Fla.
Judge Rulon finding language in statutory K.S.A. 21-4302(5) unambiguous. clear and Judge concluded, Rulon “There is no statutory requirement that more rendered gambling premises occur before a than one instance of equivalent Council notes are not the gambling place. a 443), disagreed and he also (17 App. law” Kan. 2d at statutory when decision that the district court erred majority’s with the instructing Judge phrase Rulon’s use of the “more than jury. to use of a gambling” premises one instance of refers on different occasions. disagree majority
We with the of the cases the of the analysis Appeals proposition Court of cites for the that the evidence used for premises previously required had been premises gamble. the accused entered the in order to We prove distinguishable find these cases based on their facts. Cieri,
In v. partners State 128 Conn. two owned and operated day a restaurant. On a when the defendant was absent partner charge and the was in of the two premises, police officers in glass civilian clothes entered the restaurant and each ordered a played pinball of beer. One officer machine. When indicator game, showed the officer was entitled to a inquired free the officer partner charge cigar of the in if he could have a than rather game. charge free partner cigar The of the handed a to the officer as an game. award for a free The officers then played the winning, machine for 35 or 40 minutes without ex- defendant, pending process. The he although $2.15 was. present, not was convicted keeping place purpose for the gaming. appellate court in Cieri noted that to “keep place,” as statute,
used the relevant an means appropriation person in control for the conduct of his business therein. although The court observed pinball machine had been lo- months, cated the restaurant for three it was not a *8 per machine se. only The court found that the evidence that the pinball machine gambling was used for it was time was used by officers. single The court concluded that the incident of defendant, gaming was insufficient to establish that the who was occurred, present not at the time the offense was of guilty keeping Conn, a place for the purpose gaming. of at 151-52. State, 173, In Whatley v. 189 Ga. App. the defendant was charged with intentionally operating and in participating the earn- ings of a gambling place. gambling A place was defined statute whatsoever, the prin- one of property other any real estáte or settling playing or the making of bets of which is the
cipal uses against the de- All the evidence obtained devices. gambling of during the execution of a search from his home fendant was seized of a com- support evidence offered marijuana. for The warrant stubs parlay consisted of several hundred gambling charge mercial betting games and containing notations on football and a notebook trial, that these items had was no evidence amounts. At there seized, there nor was except day on been on the the premises. had occurred on gambling activity evidence that any conduct there was no inference that the The court determined “one of the uses” of gambling operations of being the house was therefore it could not conclude residence and meaning within the of the statute. “gambling place” used as a at App. conviction was reversed. 189 Ga. 174. The defendant’s Paso, 955, per- 2d several Schepps City In El 338 S.W. v. defendant, sons, agreed assem- including They to shoot dice. players. the mother of one of the The bled a house owned peeking of the vice squad, house was vacant at the time. Officers house, game, through window of the observed a dice obtained warrant, with raided the help a search other officers dice, blanket, pair two one house. The officers seized $3,675 charged The defendant was arrested and cash. gambling. question appellate The before the court was whether right gambling to seize the used in money the officers had the game open public. contemplated to the The court noted Texas law only authorized confiscation of found money machines, máchines, etc., pinball devices such as slot and not possession undisputed, whose title and are as in this case. money The monies were not in fact used in the device but gambling. were the fruits of The court noted that the statute that money required allowed officers to seize that the seizure be made in a house. court concluded there was no evidence public gambling. that the house was open 338 S.W. ... 2d at 958-59. Calkins, People
In ex rel. Guido v. 13 Misc. 2d the de charged in wrongly, fendant was arrested and the information with unjustly, unlawfully, knowingly committing the crime of com gambling. alleged mon April The information that on *9 215 , about county Schenectady p.m., in the 3:45 city at gambling aided and abetted in the of the operation defendant Albany Shop. establishment known as the Street Card The issue information to particularize was whether the failed the defendant’s common, normal, wrong. county court found that the or- meaning dinary of the words used in the information stated with defendant, clarity place specified, that the at the time and was gambler engaged operation common of a assisting gam- It operation noted that in the of a establishment. establishment, bling charged, as the defendant therein was is to distinguished placing be from the occasional of a bet the wa- or. gering which between an incident or occurs friends as form of recreation. The court found that the was information sufficient. 13 Mise. 2d at 793.
The question application given of the of a statute to a set of Yards, Carlton, facts is a of law. question Brookover Feed Inc. v. Commissioner, 684, 687, 518 P.2d Kan. .470 The rule of strict concerning construction penal statutes is subordinate to judicial the rule that interpretation must be reasonable and sen- effectuate, legislative sible to design intent true .and Gonzales, legislature. 691,. 705, State v. 245 Kan.
(1989) Carmichael, (quoting State v. 727 P.2d [1986]). .... prohibits entering remaining or in with intent place to make a bet. A “gambling place” is any place bets; making used for settling receiving, holding, recording bet; lotteries; forwarding bets or conducting offers to playing 21-4302(5) devices. K.S.A. permits evidence that the general that,, has a reputation as a gambling place or at or about the in question, time it frequently visited by-persons known to be gamblers or frequenters commercial known gambling places to be prove admitted to whether the - gambling place.- is a ....
Judge Bullock his dissent discusses the role of the Kansas Council in drafting proposed legislation accompanying the proposed explanatory draft with notes intended to assist the legislature in understanding and interpreting proposed leg- states, Judge islation. Bullock then “Upon those occasions when legislature adopt the proposed elects statutes drafted by Council, explanatory it the Council’s frequently publishes *10 enactment.” (or headnotes) statutory notes as footnotes governor the do legislature signed by the and by Bills enacted revision of the the Council notes. The 1969 not contain Judicial Code, the under con- which included statutes Kansas Criminal here, part Council notes as did not contain the sideration Judicial 1969, L. ch. 180. legislative enactment. See law, requires After a bill has been enacted into K.S.A. 77-133 in the Kansas prepare' the Revisor of Statutes to and include . Statutes Annotated: material, “(a) including au- Prefatory copyright statement of contents; thority, authentication statements and table of constitutions, (b) captions prefacing the text of the statutes and showing scope, type; their boldface section;
(c) each history statutory the (d) \e.g., source notes Council and revisor’s notes] Judicial notes;
(e) qualifying provisions cross references to related or of other statutes; sections of the
(f) appropriate practice citing research' and pertinent parts aids publications relating of other to Kansas laws if made by available thereof; publisher the notes, (g) possible citing where and identical stat- appropriate, > . states;
utes. of other (h) covering case annotations reported the decisions of the state laws; construing interpreting courts Kansas federal (i) table of showing present sections location of and former legislative enactments in compilation.” arranging
In the material in the Kansas Statutes Annotated and thereto, supplements latest the Revisor of Statutes is not allowed sense, meaning, alter the any legislative effect of act. Any by correction made the Revisor of in editing Statutes which affects the meaning substantive of the law is construed as a clerical error only. K.S.A. 77-136. Stores, Inc.,
In Arredondo v. Duckwall Kan. 227 (1980), P.2d 1107 we pointed out that the 1969 Kansas Crim- Code, inal seq., K.S.A. 21-3101 et thorough revision of statutes, the Kansas criminal the years result of five of study by the Kansas Council. We noted that the Council’s com- Judicial sections, in the originally published ments on various Judicial by edited Revisor had been April Bulletin Council We Annotated. in the Kansas printed of Statutes Statutes comments, before code published stated that these further leg- determining legislature, helpful are by was enacted islative intent. Reyisor’s Note to note that the court failed to The Arredondo that the April Code the Kansas Criminal indicates Judicial the Office of Revisor by Council comments were edited by the Council and changes later made Statutes to reflect approved in the were then Changes comments legislature. Wilson, Paul E. who served the Professor Code, than Criminal rather preparation Kansas Annotated, 2A, 145. p. Statutes VoÍ. legislature. See Kansas ap- where Kansas Bullock’s extensive research of cases Judge *11 Kansas explanatory the notes of the courts have consulted pellate 2 out of a construing Council a indicates that in statute to note support majority. important total of 101 the It is cases cases, to remaining that out of Bullock unable Judge the is single cite a case where the notes of the have proof to an in a criminal been used insert additional element of statute, dissenting this court do. opinion as his would have of notes and commentaries to support
As for use historical 21-4303, enacting K.S.A. legislative determine the intent when publishing of the Judge practice Bullock also cites this court’s drafters’ Model Rules of Professional Con- commentaries to the duct, (1992 Rule 226 Kan. Ct. R. Annot. Supreme Kansas Court pur 238). rule to the Model prefatory We note that Rules does reasoning but limits the use of the support Judge not Bullock’s following language: the preamble and commentaries they adopted “To the that not inconsistent the herein extent are rules with Kansas, statutory or or case law the adopts principle the court in also Rules, preamble accompanying except the and comments the Model (Emphasis added.) hereinafter modified.” dissent, Allegrucci disagrees holding In with our his Justice 21-4303(b) had require proof that K.S.A. not the residence does “one of previously gambling been used for or that is First, 21-4302(5) “gam- principal its uses.” we note K.S.A. defines bets, bet, lotteries, bling place” with reference to to offers indicating, are all at least plurals, These terms devices. more than bet is to convert a facially, required place one single a “gambling place.” question into whether bet con- á into a gambling place question verts a not raised Second, we that there stated or appeal. implied on note is no in right gamble to of the United States or Constitutions charitable, religious, To fide nonprofit, State of Kansas. allow bona educational, fraternal, organizations bingo; veterans to play organizations dog nonprofit racing to horse operate par- wagering; and State operate lottery imutuel to a required three amendments to the Kansas See Constitution. Kan. Const. 3a, 3b, Third, Aft. addressing and 3c. rather than the facts §§ case, Allegrucci’s of-this dissent constructs a scenario in Justice which, occasion, home, one or offers in on bets to bet are made a school, church, monastery, nursing home in order argue to legislature intended gambling place a could be a only gambling occurs the place when at on a second or subsequent occasion. case, however,
Using the facts of this if one advertises and public in participate poker a tournament his or invites school, home, church, her in monastery, or in a home; fee; nursing charges each provides contestant an entry tournament; with contestants rules provides prizes—‘each places those would be converted into a place and an individual who the premises enters where gambling occurring, the intent to participate in the poker tourna- ment, entered gambling place. has into a
Nowhere is there reference any phrase “one of whose uses” requirement or to a *12 the premises have been previously used gambling. The statute unambiguous clear and regard in this open and is not to con- speculation struction legislative as to intent it. In behind addition, nowhere K.S.A. 21-4302(5) is there a reference to phase that or requirement. long “It determining has been the rule in Kansas that in whether a statute construction, open statute, construing ordinary or in a words are to given ordinary meaning
be
justified
their
and courts are
in disregarding
not
Gibson,
unambiguous
language.
135, 137,
State v.
App.
8 Kan.
2d
651
Howard,
(1982);
51, 54,
State v.
P.2d 949
221
(1976).
Kan.
219 subject should not be read so as penal to strict construction Even a statute what, therein, readily as a to read out is not found that which to add 211, 213, Logan, 198 Kan. ordinary language, is in it. State v. matter of 391-92, 390, Haug, P.2d (1967).” Kan. 699 535 State v. 237 565 P.2d (1985). ¶, 7, Comm’n, Syl. 251 Kan. Boatright Racing v. Kansas See (1992). P.2d 368 ap Council notes and. of the Kansas comments An Chapter in Article 43 of 21 of the Kansas pearing Statutes. Legislature, do not have by were not enacted the Kansas notated law, and edited advisory only, the force and effect of are were be They Revisor of Statutes. should not published and one expressing legislative they may intent but be construed as legislative is of doubtful indication of intent. Where statute constructions, the meaning upon reading of two susceptible sources,' may court look to other such the Judicial notes, Act, purpose and the to determine reason for to be But when a statute is clear and accomplished. intended give legislative intent unambiguous, the court must effect to the therein rather than make a of what the expressed deteimination Thus, for statutory law should or should not be. no room is left P., Mary construction. In re
Here, “gambling is clear statutory place” definition of a unambiguous. The statute contains no requirement gambling place must have been used as a previously before it is The statute does not place. rendered expressly require principal that the have as “one of its uses” place making legislature was settling of bets. The aware that defining gambling the Wisconsin and New Mexico place statutes making phrase included the “one of whose uses is for settling incorporate phrase bets” but chose not to in the Kansas statute. equivalent statutory Council notes are not the law. the statute Appeals
Use of the notes the Court of to define had been by requiring proof premises previously that the used not present as a added an element to the offense that K.S.A. correctly the statute. The district court determined *13 State to require prove does not that the residence gambling. previously had been used for The second issue raised is whether the trial court erred in refusing pursuant to instruct the to Schlein’s in- jury proposed defining gambling place. struction objection, judge Over Schlein’s the trial instructed the jury pursuant PIK 2d Crim. 65.06: charged gambling. “The defendant with the crime of The defendant pleads guilty. not charge following proved: "To establish this each of the claims must be 1. gambling place That the defendant entered remained bet; intent to make a March, 1991, day 2. That this act occurred on or about the 8th County, Kansas.”
Johnson proposed Schlein’s instruction defined a place as “one of whose principal making uses is for settling bets.” Based issue, on its decision of the first of the Court majority Appeals panel concluded the trial court in refusing erred to in- struct jury pursuant to Schlein’s proposed defining instruction place.
If the instructions properly and fairly state the law as applied case, to the facts in the if jury and the could not reasonably have them, been misled then the instructions do not constitute Morris, reversible error. State v. Here, the trial court’s instruction defining a gambling properly upon based the statute. The trial court cor-
rectly instructed the jury. judgment
The of the Court of Appeals is reversed. judg- ment of the district court is affirmed.
Davis, J., not participating.
Terry Bullock, L. Judge, District assigned. Allegrucci, J., dissenting: I disagree with the in- majority’s terpretation of K.S.A. 21-4303(b) and K.S.A. 21-4302(5). agree I with the principles of statutory construction stated in Syllabus 1 and but not with the majority’s application of them in §§ *14 that, I agree the case. with the Court of present Appeals since the State failed to establish that the residence was a gambling meaning within 21-4302(5), of K.S.A. the defendants’ convictions must be reversed. majority’s of interpretation K.S.A. 21-4303(b), proof
the residence had previously been used or that is “one of its uses” required, is not converts home, school, church, monastery, nursing “gam- home into a bling place” if on one occasion bets or offers to bet are made therein. Since gambling making 21-4303(a), bet under such an interpretation renders the definition “gambling of a place” in K.S.A. 21-4302(5) superfluous.
I do not however, find the statute to unambiguous; be clear and that, majority’s finding since the statute is clear and unam- biguous, give the court “must effect to legislative intent therein expressed rather than make a determination of what the law should or should not be no room [and is left for statutory that] misleading. construction” is (Emphasis added.) In Todd Kelly, v. (1992), the United States Court Appeals for the Tenth Circuit certified a question concerning
the interpretation of K.S.A. 40-3422. The pertinent part of that
statute to be interpreted was “the proceedings shall be stayed
appeal
on
filing
supersedeas
of a
bond in the full amount
judgment
against the health care provider signed by the
commissioner of insurance as administrator of the health care
stabilization fund
surety
without
or other security.” Federal Dis-
Judge
trict
F.
Patrick Kelly
clear,
held the statutory provision was
unambiguous, and mandatory, notwithstanding K.S.A. 1991 Supp.
40-3403(e), which set a maximum liability of the fund of
$3,000,000. We responded:
“We now turn
question.
agree
issue raised
the certified
We
40-3422,
judge
trial
isolation,
that K.S.A.
when read in
is clear
unambiguous
appears
require
supersedeas
bond in the full
However,
judgment.
amount foregoing
as the
rules and authorities
demonstrate,
clearly
simplistic
such a
reading
and narrow
of the statute is
not
may
available
to us. K.S.A. 40-3422
may
not be read in isolation but
n
only be considered
provision
connection with the other
of the Health
Act,
Care Provider
Availability
(the
Insurance
seq.
Act).”
K.S.A. 40-3401 et
Notwithstanding that
therein
legislative
expressed
intent as
effect to the
give
did not
but, rather,
legislative history
the entire Act and
looked to
We concluded
and its numerous amendments.
original
Act
the Fund to
require
construed to
40-3422 cannot be
that K.S.A.
under 40-
liability
in excess of its maximum
an
bond
post
appeal
noted,
reaching this conclu-
3403(e).
Kan. at 519-20. We
sion,
given
leeway
interpreting
are
exceptional
that courts
bonds.
legrucci Judge Bullock. and express I that separately my requires write concern this case interpret contrary expressed individuals to the law intent law, experts explained legislature who wrote the it to the writing, published and explanation. their My primary concern in this case is that K.S.A. 21-4303 and are, exceptions, exactly Council Comment with two Advisory Committee on Criminal Law of the Kansas Ju- dicial Council wrote them and presented legislature them to the writing. exceptions The two are that original statutory changed numbers have “conducting been and lotteries” as set out original Council notes was edited to read “conduct lotteries.”
For I many years have observed legislature Leg- function. extremely busy islators are and necessarily rely upon must experts in drafting highly technical laws. It impossible one any legislator to proposed legislation read all with the care and at- given legislation tention in the “real world” after its enactment. example,
For there are some 555 Kansas comments and Judicial in the *16 no quarrel with the that concept legislature makes the law and an individual or committee change cannot legislature what the clearly has made law.
Our United Supreme States Court has recently filed an opinion concerning whether to comments federal sentencing guidelines Congress that has not approved are binding upon federal courts. Supreme Our Court held comments that explain or interpret a sentencing guideline are authoritative unless the vi- comments olate statute, the Constitution or a federal or are inconsistent with, of, or a plainly reading erroneous guidelines. Stinson
224 598, U.S._, 113 S. Ct. L. Ed. 2d States, United v. it seems adopted, If so reasoning in Kansas. adopt I would that conduct K.S.A. gauge by to one’s one who wanted to me that comment, ask, The 21-4303(b) “What is a would place?” the statute and the authors of again, by Í was written repeat Council; with the the statute by the Kansas approved Judicial legislators lawyers, judges, comment was distributed and then submitted WITHOUT input in this state for their legislature. legislature admittedly did not CHANGE to the comments, the written comments were available ádopt the but to it as a comment to the to it and haVe remained available revisions of the criminal Surely, subsequent statute since 1969. not differ legislature prohibited the act did code the assumed from the comment. “a am- gambling place” sufficiently
I therefore would hold I read the Comment to de- biguous would Council Appeals intent. I would affirm the Court of legislative termine the trial court. and reverse J., joins
Bullock, foregoing dissenting opinion. in the First, Judge assigned, dissenting: I must Bullock, District respectfully disagree majority’s construction of K.S.A. explanatory in which the notes of the Kansas Council, statute, legislature published by the as footnotes to the consciously purposely disregarded. are A is in prefatory explanation word of order. The Kansas Judicial 1927, 1927, L. by legislature established ch. (now seq. 1 et 20-2201 et seq.). The Council §§ benches, appellate consists members of the and trial the House Senate, Representatives, and the bar of this court. From legislature to requests legal time time the that complicated issues be studied the Council and its various subcommittees and be proposed statutes drafted clarify Council to legislatively perceived legal correct problems. Upon the conclu- sion of this arduous and lengthy often study problem by Council, statute, statutes, or set of is drafted and forwarded legislature for its Frequently, consideration. statutory these drafts are accompanied by lengthy and carefully prepared ex- *17 notes, planatory which are intended legislature to assist the understanding and interpreting proposed legislation the the its adoption effect would have on the law of Kansas.
Upon legislature, those occasions when the elects to adopt the Council, proposed by statutes drafted it frequently publishes the Council’s explanatory (or notes as headnotes) footnotes enactment, statutory bench, bar, presumably as an aid to the public in understanding what was intended by the enactment. (See K.S.A. legislature in which the 77-133[d] requires its Revisor of Statutes to publish such notes in the Kansas books.) statute The importance placed upon the accuracy and completeness of 46-, by these notes the legislature's (K.S.A. Revisor 1992 Supp. 1211), operating statutory mandate, under legislative amply by illustrated the majority’s own example of pre-publication revision of the Council Wilson, *18 cases in in other undoubtedly in this case result opposite
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So what is the of Kansas bench, bar, notes in rely can on' the Council public Is it the rule that one they apply? statutes to which interpreting notes, except for usually explanatory safe in on the relying desired? judicially a different result is those occasional cases where I trust not. view, notes, my any In legislatively like other commentaries, notes, always should
published explanatory be court, they undoubtedly consulted are the trial bench, bar, alike, public construing interpreting any Further, view, statutory judicial enactment. my appellate construction as a thereof at result should then be least made arguably consistent with those notes To and commentaries. do judicially create unwary. otherwise to crafted traps notes, thought enticing citizenry usually rely upon the do, occasionally but then them “tagging they out” when especially crime, where the is a subject offends notion of my process due view, and fair play. my In clear prior notice of that which is proscribed by the criminal law is such a fundamental element of *19 process longer due as to no require the authority. citation of Second, turning to the I question, statutes also respectfully disagree they with how been by have construed the majority, notes, perhaps regard even without to the but especially when the notes are considered. K.S.A. provides: 21-4303 bet; “Gambling (a) (b) Making entering remaining is: a or or in a bet,
place with participate lottery, play intent to make a to in a or to a Gambling device. B is a class misdemeanor.” 21-4302(5) K.S.A. provides: room, ‘gambling vehicle, “A place’ any place, building, is tent or location any following: bets; which is used Making settling receiving, for bet; holding, lotteries; recording forwarding or conducting bets or offers to place general reputation playing gambling devices. Evidence that the has a or that, gambling place aas question, or at about the time in it was by persons
frequently gamblers visited known to be commercial or known frequenters gambling places as is admissible on issue whether it gambling place.” (Emphasis is a added.) If single gambling a (such event as the poker party in the case bar) at any place converts to “gambling a place,” majority held, why has was the 21-4302(5), italicized K.S.A. sentence of above, legislature added to the definition? Does this not which, at least an ambiguity create majority’s even under the view, would allow the court to consult the notes to 21- K.S.A. 4303(b), where we would learn that a is “gambling place” “a
structure, making settling uses is whose one bets”? of these majority’s construction by the problem created dissent, he where cor- Allegrucci’s statutes evident Justice school, church, “home, monastery, nurs- a observes that
rectly if on one “gambling place” be converted into a ing home” can Note that no to are made therein. bets or offers bet occasion 21-4303(b) it is a crime required! In K.S.A. actual bet is even the intent make a bet. The place” a “gambling to enter poker if “gambling a one majority any place place” has held requiring two or party (perhaps or other event occurs bets). “Gambling” is defined as en- more tering “gambling place” intending a to bet.
Thus, any offering into a to make person which comes “gambling a whether or not the bets are place” bets becomes actually accepted. absurd,
If this consider what occurs when K.S.A. result seems mix, will 21-4304 is as it be in future cases. This added “gambling statute it a for someone to a felony “operate” makes majority’s person a come place.” opinion, Under could into my to bet me and my offering reporter chambers court lunch on Saturday’s game, next whether or not these offers to bet are accepted, my ever chambers have been into a “gam- converted basis, bling place.” managing regular In on my daily chambers I “gambling place” have then such and in so “operated” doing felony? E committed class “a given
The court has held statute should never be a con- *20 confusion,” uncertainty, injustice, struction that leads to or Howard, that would to an State lead absurd result. v. P.2d 197 (1984). All of the problems opinion described this could be rather simply and if easily majority just avoided would consider both statutes and the Council notes and find that “gambling place” something more any place single gambling than event (such bar) as the at poker party occurs.
The majority concludes “insert this construction would an ad- ditional proof.” Again, disagree. element of I respectfully The “entering element a gambling place.” italicized sentence 21-4302(5) of K.S.A. notes to K.S.A. 21-4303 simply what a “gambling is. place” define concluding opinion, perhaps Before this it is important to ob- foregoing serve none of the should be read to mean that what defendants did the case us was “right” before “legal,” even They that matter. came to the location in ques- bet, That, course, tion to did. they bet is a crime under 21-4303(a). But that is not the crime with which they charged. They charged were entering were “gambling and, view, place” my this has not been proved. dissent, I must respectfully therefore and like Alle- Justice I
grucci, would affirm the Court of Appeals and reverse the district court. notes “ (1) (b) proved entered or it must be the offender ‘Under subsection i.e., structure, gambling place, one whose uses in a remained bets, forwarding holding, recording settling receiving, or making is for bet, lotteries, playing gambling devices [21- bets or offers to conduct bargain 4302(5)] (2) to make which is that the offender had an intent 21-4302(1) enterprise lottery participate in which is a a bet under or to an 21-4302(2) play a contrivance which is a device under under 21-4302(4).’ (Emphasis supplied.)” App. 17 Kan. 2d at 438. although It the notes and comments of the observed effect of law and are advisory Council do not have force and intent, they may legislative citing be one indication of State only, Noah, 3,¶Syl. (1990). pointed v. It following out that the Council notes K.S.A. 21-4305 and
Notes
notes criminal law and procedure criminal section alone. There are comments to through Articles 60 74 of Chapter 17 of the Kansas Corporation Code. These are the explanations pre- sented in prior Senate Bill 5 to the adoption of the Code. Six appellate court decisions cite rely upon these comments. The Uniform Consumer Credit Code is accompanied by com- ments Barkley Clark and later by Paul B. Rasor that were were, however, written after enactment. They written by authors who aided in drafting actively' who legislative advised subject. subcommittees on the We also have cited and relied upon these comments six times. The Kansas Consumer Protection Act also is accompanied by comments Barkley Clark prepared. We have relied upon and followed eight these comments times. Both the Consumer Credit Code and the Consumer Protection Act are so highly technical expert without help legislators most (and most judges) would be lost the subject. The Uniform Commercial Code comments were prepared by Clark, Rasor, Barkley Paul B. committee, legislative interested legislators had access to these prior comments to. the adoption of the Code. We have cited and relied upon number of these comments. . . I point out these examples to emphasize their importance in ascertaining legislative intent in adopting legislation. I have
notes the Revisor and Professor draftsman, following the 1969 enactment Judicial Kansas Criminal Code. Clearly, the purpose of those revisions was to make the notes legislative reflect changes made statutes proposed by the Council at the of legislative time en- Stores, Inc., actment. See Arredondo v. Duckwall words, In other the objective of revision was to make certain the published notes accurately explained the modified statutes as actually enacted. practice of publishing explanatory Council notes with enacted statutes parallels legislative practice of publish- ing the drafters’ Code, commentaries to the Uniform Commercial K.S.A. 84-1-101 et seq., and this practice court’s in publishing the drafters’ commentaries to the Model Rules of Professional Conduct, Kansas Supreme Court (1992 Rule 226 Kan. Ctl. R. 238), Annot. both of which commentaries are routinely consulted judicial constructions of the provisions they explain, always without the prior condition of ambiguity. bar, In the case at the majority has held that unambiguous” “clear and and that it is the law this state that in such cases the court apply must as written statute and cannot consult the explanatory Council notes to di- vine the intent of legislature statute, in adopting the albeit virtually conceded majority that to do so would require