STATE OF KANSAS, Appellant, v. SPENCER GIFTS, LLC, Appellee.
No. 111,398
Court of Appeals of Kansas
April 24, 2015.
348 P.3d 611 | 437
Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant. Tricia A. Bath, Thomas J. Bath, and Mitch E. Biebighauser, of Bath & Edmonds, P.A., of Overland Park, for appellee.
MCANANY, J.: The State of Kansas appeals from the district court’s decision to dismiss a criminal complaint against Spencer Gifts, LLC, due to a violation of statutory speedy trial rights under
On October 6, 2010, the State filed a сriminal complaint against Spencer Gifts, LLC, charging it with promoting obscenity that was harmful to minors pursuant to
Spencer Gifts contended thаt it had a statutory right to a speedy trial. It did not assert a constitutional speedy trial claim. In response, the State requested that the district court determine whether
Shortly before trial in February 2014, Spencer Gifts moved to dismiss for violation of its speedy trial rights, more than 180 days having passed since commencement of the action without the matter being brоught to trial. It argued that Kansas courts had applied the speedy trial statute to individuals who were charged with a crime but were not held on an appearance bond. See City of Elkhart v. Bollacker, 243 Kan. 543, 757 P.2d 311 (1988)
The motion was reassigned to a senior district court judge who, relying on the holdings in Bollacker and Palmquist, ruled that the speedy trial statute applied tо Spencer Gifts regardless of the fact that it had been ordered to appear by summons. The court determined that based on the passage of time, Spencer Gifts’ statutory speedy trial rights under
On appeal, the State argues that the district court erred in applying
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (e).”
Spencer Gifts was not held to answer on an appearance bond. See
Spencer Gifts relies on Bollacker. There, the defendant was charged by means of a complaint, and he received a notice to appear in municipal court for unlawful discharge of a firearm. Bollacker appeared for trial and was found guilty. He appealed his conviction to the district court. Bollacker’s attorney wrote to the municipal court about the necessity of an appearance bond, but there was no aрpearance bond filed. Bollacker was merely notified to appear, and Bollacker never failed to appear during the pendency of the action. After several delays, his counsel filed a motion to dismiss based on
Spencer Gifts argues that the situation in this case is similar to that in Bollacker. In both cases, the defendants were not required to post a bond; rather, they were merely notified to appear. Thе Bollacker court relied on the holding in City of Overland Park v. Fricke, 226 Kan. 496, 502, 601 P.2d 1130 (1979), noting that the defendant in Fricke had posted an appearance bond, but the court found no significance in the distinction. Bollacker, 243 Kan. at 545. In Fricke, 226 Kan. 502, our Supreme Court found that the time limitations provided in
The Bollacker court recognized the legislature’s intent that “persons charged with crime should be granted a prompt and speedy trial . . . [t]o prevent the oppression of a citizen by holding criminal prosecutions suspended over [the person] for an indefinite time and to prevent delays in the administration of justice.” 243 Kan. at 545. The Bollacker court pointed to
Spencer Gifts asserts that the holding in Bollacker does not depend on the form in which the defendant is commanded to appear. Instead of the threat of arrest, Spencer Gifts was under the threat of sanction throughout the criminal process for failure to appear. On two occasions, the district court commanded Spencer Gifts to personally appear despite the local rule and statutory provision allowing misdemeanor defendants to appear through counsel. See
A panel of this court reaffirmed the Bollacker holding in Palmquist, 2011 WL 767861, at *4-5. In that case, the defendant had received several driving-related citations by mail directing him tо appear in district court. Palmquist appeared, was arraigned, and entered a plea of not guilty but was not taken into custody. After several delays, the case was dismissed without prejudice due to the State’s inability to proceed without an unavailable witness. The case was later refilled, and Palmquist was ordered to appear for arraignment in the refilled case by summons. Palmquist appeared, entered a plea of not guilty, but was not taken into custody.
Palmquist moved to dismiss based upon a violation of his spеedy trial rights. The district court applied the speedy trial statute and dismissed the charges despite the fact that Palmquist was held to answer by way of a summons rather than an appearance bond. The panel majority reasoned:
“We find the legal analysis in Bollacker is sound and the outcome practical. Both a summons and a notice to appear compel appearance at a future hearing without the need to post security, which is comparable to many appearance bonds used to secure appearance at a future hearing. . . . Moreover, a person who receives a summons or a notice to appear is subject to a degree of restraint that is, for all practical purposes, identical to the degree of restraint imposed upon a person who is not required to post bail but held to answer to pending charges based on an appearance bond. And, whether secured by notice to appear, summons, or appearancе bond, nonappearance could result in a conviction for failure to appear, a class B nonperson misdemeanor. See K.S.A. 21-3813(a), (b), and (d).” Palmquist, 2011 WL 767861, at *4.
“Although citing to several cases that have held K.S.A. 22-3402(2) only applies to defendants who are charged with a crime and subject to an appearance bond, we find each of them factually distinguishable. In State v. Mathenia, 262 Kan. 890, 942 P.2d 624 (1997), and State v. Strong, 8 Kan. App. 2d 589, 663 P.2d 668, rev. denied 233 Kan. 1093 (1983), the defendants were awaiting trial on pending charges in one case but in custody and serving sentences pursuant to convictions in another case. The Mathenia and Strong courts held that that the time periods of K.S.A. 22-3402(1) and (2) were inapplicable to the defendants because in both cases, the defendants (1) were not held in custody solely by reason of the pending charges, and (2) were not held to answer for the pending charges based on an appearance bond. Mathenia, 262 Kan. 897-900; Strong, 8 Kan. App. 2d at 592-93. In State v. Blizzard, 43 Kan. App. 2d 418, 421-23, 225 P.3d 773 (2010), the court held that the time рeriod during which the State’s appeal was pending from a district court’s dismissal of a complaint did not count for statutory speedy trial purposes because, under K.S.A. 22-3604(1), the defendant was not held in jail or subject to an appearance bond while the appeal was pending.” Palmquist, 2011 WL 767861, at *3.
The Palmquist court rejected the holdings in these cases in favor of our Supreme Court’s holding in Bollacker. In State v. Blizzard, 43 Kan. App. 2d 418, 423, 225 P.3d 773 (2010), the distinguishing factor was that the defendant was not held on any court order restricting his liberty. In this case, the corporate defendant was subject to a summons.
The Stаte now reasserts the arguments that were rejected by a panel of this court in Palmquist. The State argues that Bollacker and Palmquist were wrongly decided, having ignored the plain and unambiguous language of the statute. On the other hand, Spencer Gifts argues that this court should not conduct statutory interpretation when the holding in Bollacker is still binding precedent. “[W]hen the legislature fails to modify a statute to avoid a long-standing judicial construction of that statute, the legislature is presumed to agree with the court’s interpretation. [Citations omitted.]” Clanton v. Estivo, 26 Kan. App. 2d 340, 343, 988 P.2d 254 (1999). Spencer Gifts argues that the holding in Bollacker, which
The State argues the facts of this case are different because the defendant is a limited liability company rather than an individual, who is subject to arrest for nonappearance. Spencer Gifts, as a limited liability company, cannot be arrested by a surety. See
Despite the fаct that corporations cannot be incarcerated, constitutional speedy trial rights have been applied to corporate defendants. See United States v. Rivera Const. Co., 863 F.2d 293, 295 (3d Cir. 1988); United States v. Litton Systems, Inc., 722 F.2d 264 (5th Cir. 1984); United States v. Stein, 456 F.2d 844 (2d Cir. 1972), cert. denied 408 U.S. 922 (1972). In United States v. Sears, Roebuck and Co., Inc., 677 F. Supp. 1042, 1046-48 (C.D. Cal. 1988), rev’d on other grounds 877 F.2d 734 (9th Cir. 1989), the California federal district court discussed whether the federal speedy trial act should apply to corporations. The court stated:
“These problems [caused by delayed prosecution], which vex a corporation just as much as they vex an individual, include being forced to exist under ‘a cloud of anxiety, suspicion, and hostility’; a ‘draining of rеsources’; subjection to ‘public and commercial obliquoy’; restraint on liberty; and loss of contracts, customers and public good will.” 677 F. Supp. at 1046.
In State v. Empak, Inc., 889 S.W.2d 618, 623 (Tex. App. 1994), the Texas Court of Appeals found:
“Corporations have a speedy trial right under federal and Texas constitutions. In Texas, a speedy trial right is also assured by
TEX. CODE CRIM. PROC. ANN. art. 1.05 (Vernon 1977), and the Code of Criminal Procedure expressly applies to corporations. [Citation omitted.] Empak argues that without a speedy trial right, the State could file charges against a corporation and delay service indefinitely indereliction of lеgislatively promulgated statute of limitations. . . . In addition to relieving the defendant of unnecessary consequences associated with being criminally accused, the right to a speedy trial exists to promote society’s interest in promptly disposing of criminal charges to enhance the administration of justice. [Citation omitted.]”
We conclude that the district court was correct in relying on Bollacker, which construed the language of
Affirmed.
* * *
MALONE, C.J., concurring: I concur with the majority opinion which faithfully follows the relevant precedent set forth in City of Elkhart v. Bollacker, 243 Kan. 543, 757 P.2d 311 (1988). However, I write separately to urge the Kansas Supreme Court to overrule its decision in Bollacker because that decision ignores the plain and unambiguous language of the Kansas speedy trial statute.
Spencer Gifts, LLC, was charged with 10 counts of promoting obscenity that wаs harmful to minors in violation of
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (e).” (Emphasis added.)
The legislature knows thе difference between an appearance bond as opposed to a notice to appear or a summons as it has defined the terms differently in the Kansas Code of Criminal Procedure. An appearance bond is defined as “an agreement, with or without security, entered into by a person in custody by which the person is bound to comply with the conditions specified in the agreement.”
The district court dismissed the complaint against Spencer Gifts based on this court’s decision in State v. Palmquist, No. 103,914, 2011 WL 767861 (Kan. App. 2011) (unpublished opinion), rev. denied 292 Kan. 968 (2011), which in turn followed our Supreme
A divided panel of this court followed the Bollacker holding in Palmquist, 2011 WL 767861, at *4-5. In that case, the defendant received several driving-related сitations by mail directing him to appear in district court. The defendant appeared, was arraigned, and entered a plea of not guilty, but was not taken into custody. After several delays, the district court applied the speedy trial statute and dismissed the charges despite the fact that the defendant was held to answer by way of a summons rather than an appearance bond. On appeal, this court affirmed the dismissal following the analysis in Bollacker. Palmquist, 2011 WL 767861, at *7. The dissent in Palmquist noted that our Supreme Court’s decision in Bollacker failed to apply the plain language of the Kansas speedy trial statute which only applies to persons charged with a crime and held to answer on an appearance bond. Palmquist, 2011 WL 767861, at *7-9 (Buser, J., dissenting).
The Kansas Supreme Court denied a petition for review in Palmquist. However, “[t]he denial of a petition for review imports no opinion on the merits of the case.” Kansas Supreme Court Rule 8.03(g) (2014 Kan. Ct. R. Annot. 80).
I agree with the dissent in Palmquist that our Supreme Court’s decision in Bollacker failed to apply the plain language of the Kansas speedy trial statute.
When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014). Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute’s language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature’s intent. Phillips, 299 Kan. at 495.
Our Supreme Court’s decision in Bollacker broadened the language of
“There is another, more basic reason not to apply the reasonableness rubric of Heckard and Okerberg to this price-fixing case: Under the pattern for interpretation of statutes that this court has now firmly established, we are loathe to read unwritten elements into otherwise clear legislative language. [Citation omitted.] We take the legislature at its word, unless there is ambiguity, because the legislature, unlike the judiciary, is one of the branches of government charged with development of public policy on behalf of the electorate and because our deference to clear statutory language leads to long-term predictability and stability in Kansas law. [Citation omitted.] This means that, if the Heckard and Okerberg contracts were to come before us now, it is all but certain we would not append a requirement that an antitrust plaintiff demonstrate the unreasonableness of a defendant’s trade restraint to show a statutory violation, because the clear language of the governing statutes does not require it.” 294 Kan. at 348.
The Bollacker court recognized that
Interestingly, the Bollacker court only partially quoted the language in the failure to appear statute. The complete language of
If the legislature intended for the speedy trial statute to apply to persons made to appear in court in response to a notice to appear or a summons, the legislature could have easily drafted the statute to say so. Instead,
Spencer Gifts points out that the legislature has not modified the speedy trial statute since Bollacker was decided to clarify that the right to a speedy trial does not apply to persons made to appear in court on a notice to appear or a summons. When the legislature fails to modify a statute to avoid a long-standing judicial construction of that statute, the legislature is presumed to agree with that judicial construction. Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008).
This might be a persuasive argument except for the fact that 9 years after its decision in Bollacker, our Supreme Court expressly stated in State v. Mathenia, 262 Kan. 890, 900, 942 P.2d 624 (1997), that the Kansas speedy trial statute refers only to defendants “charged with a crime and held to answer on an appearance bond.” In that case, the defendant was awaiting trial on pending charges in one case but in custody and serving sentences pursuant to convictions in another case. The Mathenia court stated, albeit in dicta, that the defendant “was not held on an appearance bond; therefore, K.S.A. 22-3402(2) does not apply.” 262 Kan. at 900. Thus, the Supreme Court itself has given mixеd signals on how to interpret and apply the Kansas speedy trial statute.
If I were charged with writing the law, I would make it so that the speedy trial statute applies to any person charged with a crime,
In just the last year, our Supreme Court has repeatedly declared that when interpreting a statute to discern legislative intent, statutory language is an appellate court’s paramount consideration “because the best and only safe rule for determining the intent of the creators of a written law is to abide by the language they have chosen to use.” Merryfield v. Sullivan, 301 Kan. 397, Syl. ¶ 2, 343 P.3d 515 (2015); see In re Estate of Strader, 301 Kan. 50, Syl. ¶ 3, 339 P.3d 769 (2014); State v. Looney, 299 Kan. 903, Syl. ¶ 3, 327 P.3d 425 (2014). If this case is further reviewed, the Kansas Supreme Court should clarify its conflicting language in Bollacker and Mathenia. If our Supreme Court means what it says about abiding by the statutory language used by the legislature, the court should no longer follow its decision in Bollacker because that decision ignores the plain and unambiguous language of the Kansas speedy trial statute. See Hall, 286 Kan. at 787 (doctrine of stare decisis does not compel perpetuation of incorrect analysis of law).