Opinion
No. 108,536.
2013-06-7
CITY OF ENSIGN, Kansas, Appellee, v. R. Bruce HARTNETT, Appellant.
Appeal from Gray District Court; Van Z. Hampton, Judge. Ronald Bruce Hartnett, appellant pro se. Michael A. Doll, of Doll Law Firm, LLC, of Dodge City, for appellee.
Appeal from Gray District Court; Van Z. Hampton, Judge.
Ronald Bruce Hartnett, appellant pro se. Michael A. Doll, of Doll Law Firm, LLC, of Dodge City, for appellee.
Before HILL, P.J., PIERRON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
R. Bruce Hartnett, unrepresented by counsel, raises three issues in this appeal of his municipal code nuisance violations. Hartnett argues the district court erred when it treated his pretrial motion for summary judgment filed under Supreme Court Rule 141 (2012 Kan. Ct. R. Annot. 247) as a motion to dismiss. Because Hartnett cites no authority that allows a criminal defendant to make a civil motion in an appeal from the municipal court to the district court, we reject Hartnett's claims on this point. Next, Hartnett claims the City of Ensign lacked “standing” because it filed a defective complaint and failed to exhaust its administrative remedies. On this point, we conclude Hartnett has no grasp of the legal principles of standing and administrative remedies. He simply does not understand the legal principles he cites. We hold that he has abandoned these claims as he has failed to cite any legal authorities that support his position. Finally, if we interpret Hartnett's words correctly, he claims the two city ordinances are vague and therefore unenforceable. Our examination of both ordinances leads us to a contrary conclusion. We affirm his convictions.
The City wanted to control the storage of junked motor vehicles within the city limits.
On June 6, 2011, the City of Ensign passed Ordinance No. 150, regulating junked motor vehicles on private property in the city, and Ordinance No. 153, adopting an environmental code for the city. The ordinances took effect on the June 16, 2011, date of publication in the official city newspaper.
On July 28, 2011, Hartnett received a notice to appear before the municipal court on August 8, 2011, for violating Ordinance No. 150 and Ordinance No. 153. Hartnett responded by filing a “constructive notice to cure and demand for production” and a “demand for abatement.” Hartnett challenged, inter alia, whether the notice to appear was sufficient to confer subject matter jurisdiction upon the municipal court. According to Hartnett, the August 8, 2011, hearing was then “abruptly cancelled” without any notice to him.
On August 15, 2011, the City passed a resolution giving it the authority to abate any conditions (junked motor vehicles) found to be in violation of Ordinance No. 150 and charge the corresponding costs against the owner of the property. The City subsequently removed three vehicles, including one improperly tagged vehicle, and a trailer from 307 Custer that were deemed to be in violation of the city ordinance.
On November 1, 2011, the City served Hartnett by certified mail with a “Kansas uniform complaint and notice to appear” that alleged Hartnett violated Ordinance No. 150 and Ordinance No. 153. The municipal court, in a journal entry dated January 9, 2012, found Harnett guilty of violating Ordinance No. 150 and Ordinance No. 153.
Hartnett timely appealed his convictions to the District Court of Gray County. Prior to trial, Hartnett filed a “demand for discovery.” The district court, in a pretrial conference order, ruled that the City had provided Hartnett with all relevant discovery except for proof of certification of the municipal court judge under K.S.A. 12–4114. Hartnett responded by filing an “objections to pretrial conference order journal entry.” Hartnett then filed a “motion for summary judgment” essentially arguing, inter alia, that the City had not filed a proper complaint and had failed to exhaust administrative remedies and procedures before seizing his property.
At the outset of the bench trial on July 3, 2012, the district court heard arguments on Hartnett's motion for summary judgment. Noting Hartnett's pro se status, the district court construed Hartnett's motion as a motion for dismissal. After finding that Hartnett had not established that the City failed to comply with existing law or had violated his constitutional rights, the district court denied the motion.
During trial, the City presented the testimony of Josh Watson, the mayor of the City. Watson had appointed himself as the public officer in charge of enforcing Ordinance No. 150 and Ordinance No. 153. Watson testified to observing untagged vehicles, a vehicle on blocks, piles of lumber, and other materials on Hartnett's property that violated Ordinance No. 150, and conditions that appeared to violate Ordinance No. 153. The City introduced a series of pictures taken on July 11, 2011, August 8, 2011, August 12, 2011, and June 29, 2012, showing the condition of Hartnett's property and the adjacent street.
The district court, after ruling that the procedures used by the City to both enact and formally adopt Ordinance No. 150 and Ordinance No. 153 were constitutional, found Hartnett guilty of violating Ordinance No. 150 and Ordinance No. 153. The district court imposed a $100 fine for each violation and ordered Hartnett to clean up his property to comply with Ordinance No. 153 within 60 days.
In this appeal, Hartnett frames three arguments in his appellate brief: (1) the district court erred in converting his motion for summary judgment to a motion to dismiss; (2) the City did not have standing; and (3) the district court erred in not finding that enforcement of the ordinances was arbitrary and capricious because the ordinances were vague. We find none of his claims convincing.
There is no place for a summary judgment motion in a criminal action.
Hartnett argues the district court erred in considering his motion for summary judgment as a motion to dismiss. He cites as authority Supreme Court Rule 141. By doing so, Hartnett fails to take into account the nature of the summary judgment remedy. In cases that are appropriate for summary judgment, either party can receive summary judgment. Obviously, such relief to the State in a criminal prosecution is contrary to our principles of law such as “innocent until proved guilty,” “proof beyond a reasonable doubt,” and the “burden being on the State to prove guilt.” In criminal cases, the rules of criminal procedure are applicable. See K.S.A. 22–2101 et seq.
Also, Hartnett offers no authority that a criminal defendant can even file a motion for summary judgment under K.S.A.2011 Supp. 60–256. Consequently, Hartnett has abandoned this issue on appeal. See State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011), where the court held that a point raised incidentally in a brief and not argued therein is deemed abandoned.
The district court had jurisdiction.
Hartnett claims the City filed a defective complaint and failed to exhaust its administrative remedies.
A defective complaint is one that does not meet minimum standards of sufficiency or accuracy, in either form or substance. City of Wichita v. Marlett, 31 Kan.App.2d 360, 363, 65 P.3d 547 (2003).
The City served Hartnett a notice to appear on July 28, 2011, and a uniform complaint and notice to appear on November 3, 2011. Each requested Hartnett appear at municipal court, identified Hartnett as the defendant, and listed the city ordinances Hartnett had allegedly violated. The July 28, 2011, notice to appear is problematic for three reasons. First, the complaint was clearly premature for the alleged Ordinance No. 153 violation. Hartnett received the initial notice that his property at 307 Custer violated Ordinance No. 150 and Ordinance No. 153 on July 15, 2011. Under Ordinance No. 153, however, Hartnett had 15 days to request a hearing, or until July 30, 2011. Second, the first complaint did not identify the address where the alleged violations were occurring. Third, the City during trial conceded that due to “some confusion as to the proper procedure” it had not actually filed a complaint with the municipal court when it sent Hartnett the July 28, 2011, notice to appear, so the municipal court did not have subject matter jurisdiction. Regardless, the City corrected these oversights by actually filing the amended second complaint on November 1, 2011, which also included the address of the alleged violations and was filed well beyond any time limit the ordinances established requiring Hartnett to request a hearing or abate the violations.
K.S.A. 22–3610(a) states: “When a case is appealed to the district court, such court shall hear and determine the cause on the original complaint .... “ (Emphasis added.) K.S.A. 22–3201(b) provides that a “complaint ... shall be a plain and concise written statement of the essential facts constituting the crime charged.” Here, the original complaint was sufficient in accuracy, in both form and substance, to place Hartnett on notice that the City was charging him in municipal court for failing to abate two separate alleged city ordinance violations on his property at 307 Custer.
At the district court, a defendant has two ways to challenge an alleged defective complaint—filing a motion for a bill of particulars or filing a motion for arrest of judgment. See State v. Tapia, 295 Kan. 978, 984, 287 P.3d 879 (2012) (citing State v.. Hall, 246 Kan. 728, 758–60, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 [2003] ). Hartnett never filed either motion. Further, Hartnett fails to argue that any defect in the complaint prejudiced the preparation of his defense, impaired his ability to plead the conviction in any subsequent prosecution, or limited his substantial rights to a fair trial. See Hall, 246 Kan. at 765. An issue not briefed is deemed waived or abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030(2011).
We turn now to Hartnett's claim that the City failed to exhaust its administrative remedies before filing an action against him in municipal court. Frankly, Hartnett fails to explain how this pertains in any fashion to a criminal action. He offers no authority to explain why, in this criminal action, the Kansas Department of Revenue has original jurisdiction or why the City was required to exhaust administrative remedies under K.S.A.2011 Supp. 77–612 before bringing criminal charges against him. Particularly when K.S.A.2011 Supp. 77–612 only applies to a person filing a petition for judicial review under the Kansas Judicial Review Act of a final or nonfinal agency action. Consequently, Hartnett has waived these arguments on appeal. See Anderson, 291 Kan. at 858.
These two ordinances were not vague.
In Hartnett's last argument on appeal, he complains about “the abuse of administrative due process resulting in vague and capricious ordinance enforcement.” The basis of this argument appears to be Hartnett's claim that he introduced “evidence” that the City enacted the ordinances to promote Watson's “self-serving” agenda. Specifically, Hartnett attempted to establish through personal assertions in his motion for summary judgment and during Watson's cross-examination that Watson, through the city council, enacted the ordinances in question and other ordinances once becoming mayor to obtain a higher property appraisal on his own residence. Hartnett believes this “evidence” established an affirmative defense that the City's actions equated to having unclean hands.
Hartnett fails to point to any language indicating the ordinances were vague or offer any support that enforcement of the ordinances was arbitrary. Hartnett also fails to cite any authority to support his proposition that unclean hands is an affirmative defense in a criminal action. The “clean hands” doctrine, however, is based on equity and is applied sparingly, in very limited situations. As the Kansas Supreme Court explained, “The clean hands doctrine in substance provides that no person can obtain affirmative relief in equity with respect to a transaction in which he has, himself, been guilty of inequitable conduct.” (Emphasis added.) Green v. Higgins, 217 Kan. 217, 220, 535 P.2d 446 (1975). Hartnett has abandoned this argument on appeal. See Anderson, 291 Kan. at 858.
In addition to a municipality's planning and zoning power derived solely from K.S.A. 12–741 et seq. , municipalities have broad police powers to enact legislation regulating or restricting certain activities to promote the health, safety, and welfare of their citizens. State v. Risjord, 249 Kan. 497, 501, 819 P.2d 638 (1991). In particular, Article 12, § 5 of the Kansas Constitution, also known as the Home Rule Amendment, ensures that Kansas municipalities have the power to adopt ordinances on any type of subject provided the state legislature has not addressed the issue. Farha v. City of Wichita, 284 Kan. 507, 513, 161 P.3d 717 (2007).
Here, the record indicates the City “passed and approved” Ordinance No. 150 and Ordinance No. 153 on June 6, 2011, to promote the health, safety, and welfare of its residents. The ordinances became effective upon their publication in The Montezuma Press on June 16, 2011. “Since [each] ordinance was duly passed and published, there is a strong presumption of law that precedent legal requirements were conformed to.” Moore v. City of Pratt, 148 Kan. 53, 57, 79 P.2d 871 (1938). The City sent Hartnett a notice of his alleged violations of the ordinances by certified mail. Because Hartnett failed to take any action to correct the problems or request a hearing within the prescribed time, the City had the authority to file a complaint in the Municipal Court of Ensign. The district court found the photographic evidence dispositive of the violations. The evidence is sufficient to establish that a rational factfinder could have found Hartnett guilty beyond a reasonable doubt. See State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012).
Affirmed.